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[ { "docid": "5746351", "title": "", "text": "officials was such as to overbear petitioner’s will to resist and to bring about a confession that was not the product of a rational intellect and a free will. United States v. Pomares, 499 F.2d 1220, 1222 (2d Cir.), cert, denied, 419 U.S. 1032, 95 S.Ct. 514, 42 L.Ed.2d 307 (1974); United States v. Ferrara, 377 F.2d 16,17 (2d Cir.), cert, denied, 389 U.S. 908, 88 S.Ct. 225, 19 L.Ed.2d 225 (1967). See also Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971); Davis v. North Carolina, supra; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Justice Frankfurter has articulated the test of voluntariness which guides my review of petitioner’s application in this court: Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination- critically impaired, the use of his confession offends due process. . . . The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). In order to resolve this issue of voluntariness, I must consider and weigh all of the circumstances which surrounded petitioner’s confession given to law enforcement authorities in 1959. Since Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have not been given retroactive effect [Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d '882 (1966)], the admissibility of petitioner’s statement must be governed by the then-existing contemporary case law elaborating the constitutional due process standard of voluntariness. Analysis of a variety of factors is required to resolve this issue. (1) CIRCUMSTANCES OF THE" } ]

[ { "docid": "22754863", "title": "", "text": "Abu Ali, 395 F.Supp.2d at 342. When Miranda warnings are unnecessary, as in the case of an interrogation by foreign officials, we assess the voluntariness of a defendant’s statements by asking whether the confession is “the product of an essentially free and unconstrained choice by its maker.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). If it is, “it may be used against him.” Id. at 602, 81 S.Ct. 1860. But, if the defendant’s “will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Id. see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The government acknowledges that “[t]he crucial inquiry is whether [Abu Ali’s] will has been ‘overborne,’ ” and maintains that it was not; Abu Ali, of course, contends that it was. In evaluating whether a defendant’s will has been overborne, courts must assess the totality of the circumstances, taking into account characteristics of the accused, and details of the interrogation. See Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. The factors we consider include: “the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Id. (internal citations omitted). We review a trial court’s legal conclusion as to the voluntariness of an accused’s statements de novo, United States v. Dodier, 630 F.2d 232, 236 (4th Cir.1980), but its “findings of fact on the circumstances surrounding the confession” for clear error, United States v. Braxton, 112 F.3d 777, 781 (4th Cir.1997) (internal quotation marks omitted). We particularly defer to a district court’s credibility determinations, for “it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress.” United States v. Murray, 65 F.3d 1161, 1169 (4th Cir.1995). In this case, after hearing nearly fourteen days of testimony," }, { "docid": "22860223", "title": "", "text": "voluntary is a question of law reviewable by this court de novo. Griffin v. Strong, 983 F.2d 1540, 1541 (10th Cir.1993). The voluntariness of a confession is determined by considering the totality of the circumstances in which it was made. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). To determine voluntariness, we must ask: Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). A number of factors must be considered in assessing whether a confession is voluntary. These factors include the age, intelligence, and education of the suspect; the length of the detention and questioning; the use or threat of physical punishment; whether Miranda safeguards were administered; the accused’s physical and mental characteristics; and the location of the interrogation. United States v. Chalan, 812 F.2d 1302, 1307-1308 (10th Cir.1987). The court must also consider the conduct of the police officers. See Mincey v. Arizona, 437 U.S. 385, 398-402, 98 S.Ct. 2408, 2416-18, 57 L.Ed.2d 290 (1978). Construing the facts in a way most favorable to the government, we hold as a matter of law that Mr. Perdue’s statements were made involuntarily. No single factor dictates this result; rather, we are led to this conclusion because of the overwhelmingly coercive atmosphere created by many different elements. Of particular importance are the isolated location in which the interrogation took place, the rapidity with which the events unfolded, the officers’ use of guns, the placement of the suspect face down in the dirt prior to interrogation, the fact that Officer Carreno stood above' Mr. Perdue with his gun drawn during the questioning, and the failure to provide Miranda safeguards. Also contributing to the coercive, “police dominated” environment was the large and intimidating presence of police" }, { "docid": "912809", "title": "", "text": "court factual findings under AEDPA is similarly deferential, Under § 2254(d)(2), federal courts cannot declare “state-court factual determinations .., unreasonable merely be cause [we] would have reached a different conclusion in the first instance.” Brumfield v. Cain, — U.S. —, 135 S.Ct. 2269, 2277, 192 L.Ed,2d 356 (2015) (internal quotation marks and citation omitted). AEDPA does not permit federal courts to “supersede the trial court’s ... determination” if a review of the record shows only that “[rjeasonable minds ... might disagree about the finding in question.” Id, (internal quotations and citations omitted). But again, “deference does not imply abandonment or abdication of judicial review, and does not by definition preclude relief.” Id, (internal quotations and citations omitted). B. The Law of Confessions The Due Process Clause of the Fourteenth Amendment forbids the admission of an involuntary confession in evidence in a criminal prosecution. Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). In deciding whether a confession was voluntary, courts assess “the totality of all the surrounding circumstances—both the- characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamante, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see also Withrow v. Williams, 507 U.S. 680, 693-94, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (collecting relevant factors). The purpose of this test is to determine whether “the defendant’s will was in fact overborne.” Miller, 474 U.S. at 116, 106 S.Ct. 445. The Supreme Court’s many cases applying the voluntariness test have not distilled the doctrine into a comprehensive set of hard rules, though prohibitions on physical coercion are absolute. See Mincey v. Arizona, 437 U.S. 385, 401, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (statements resulted from “virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness”); Brown v. Mississippi, 297 U.S. 278, 279, 56 S.Ct. 461, 80 L.Ed. 682 (1936) (confessions extracted by “brutality and violence”). AEDPA does not “require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied”, because “even a general standard" }, { "docid": "4019884", "title": "", "text": "confession the product of an essentially free and unconstrained choice by its maker?’ ” Schneckloth v. Busta- monte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)). Petitioner argues that Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), requires that a confession induced by “ ‘any direct or implied promises, however slight,’ ” must be suppressed. Id. at 542-43, 18 S.Ct. at 186-87 (quoting 3 Russell on Crimes 478 (6th ed. 1896)), and that this Circuit has adopted the rule in Bram, pointing to United States v. Fisher, 700 F.2d 780, 783 (2d Cir.1983). Petitioner concedes that we employ a “totality of the circumstances” rule, but argues that Bram’s continued viability independently mandates suppression of Green’s confession because of Detective Hazel’s repeated promises to help him. Petitioner misreads the Supreme Court’s and our decisions. There are not two rules — standing as twin lighthouses — to guide a reviewing court safely to harbor in determining whether a confession is voluntary. There is only one guide — the totality of the circumstances rule. No single criterion controls whether an accused’s confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances. See Fare v. Michael C, 442 U.S. 707, 726, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979); Mincey v. Arizona, 437 U.S. 385, 401, 98 S.Ct. 2408, 2418, 57 L.Ed.2d 290 (1978); Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047; Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1342, 10 L.Ed.2d 513 (1963); Lynumn, 372 U.S. at 534-35, 83 S.Ct. at 920-21; Shotwell Mfg. Co. v. United States, 371 U.S. 341, 348, 83 S.Ct. 448, 453, 9 L.Ed.2d 357 (1963); Wolfrath v. La Vallee, 576 F.2d 965, 971 (2d Cir.), cert. denied, 439 U.S. 933, 99 S.Ct. 325, 58 L.Ed. 2d 328 (1978); Tanner v. Vincent, 541 F.2d 932, 936 (2d Cir.1976), cert. denied, 429 U.S. 1065, 97 S.Ct. 794," }, { "docid": "23178841", "title": "", "text": "of free and rational choice: The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. at 1879. See also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In deciding whether an accused’s will has been overborne, courts have looked to the totality of the circumstances surrounding the confession, both the characteristics of the accused and the details of the interrogation, and determined their psychological impact on an accused’s ability to resist pressures to confess. Schneckloth v. Bustamonte, 412 U.S. at 226, 93 S.Ct. 2041; Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. 1860. The voluntariness of a confession is a mixed question of law and fact. Justice Frankfurter once described the notion of voluntariness as an “amphibian” because “[i]t purports at once to describe an internal psychic state and to characterize the state for legal purposes.” Culombe v. Connecticut, 367 U.S. at 605, 81 S.Ct. at 1880. The unique mixture of law and fact involved in a voluntariness determination is reflected in our standard of review. The Government contends that we may only overturn the District Court’s conclusion that the confession was voluntary if we find clear error. That statement is not entirely correct. Justice Frankfurter separated a court’s inquiry on voluntariness into three phases: The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, “phenomenological” occurrences and events surrounding the confession. Second, because the concept of “voluntariness” is one which concerns a mental state, there is the imaginative recreation, largely" }, { "docid": "23575928", "title": "", "text": "the confession as man dated by 18 U.S.C. § 3501(a). We must agree and remand for a hearing on the voluntariness of the confession. Section 3501(a) provides that: In any criminal prosecution brought by the United States ... a confession ... shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of volun-tariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. 18 U.S.C. § 3501(a) (emphasis added). This section codifies the constitutional requirement for a hearing on the voluntariness of a defendant’s confession announced by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 2 L.Ed.2d 908 (1964). The Government contends that the failure to hold a § 3501 hearing in the instant case constitutes harmless error. We disagree for three reasons. First, § 3501(a) affirmatively requires that the “trial judge shall ... determine any issue as to [the] voluntariness” of a confession; it does not leave the question whether to hold a hearing to the trial judge’s discretion. We agree with the Ninth Circuit, which said in the similar context of failure to instruct the jury on the voluntariness of defendant’s statements, that “neglecting a statutory requirement should diminish our enthusiasm to invoke the harmless error doctrine.” United States v. Miller, 603 F.2d 109, 110 (9th Cir.1979). Second, the Supreme Court repeatedly has held that “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law ‘even though there is ample evidence aside from the confession to support the conviction.’ ” Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (emphasis in original) (quoting Jackson v. Denno, supra, 378 U.S. at" }, { "docid": "48318", "title": "", "text": "the confession, and even though there is ample evidence aside from the confession to support the conviction.” Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964) (citation omitted); see also United States v. Janoe, 720 F.2d 1156, 1164 (10th Cir.1983). Whether a confession is involuntary is a question of law which this court reviews de novo. See United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir.1993). In Jackson v. Denno, the Supreme Court held that a defendant who objects to the admission of a confession on voluntariness grounds has a constitutional right to a fair hearing and an independent and reliable determination of voluntariness before the confession is allowed to be heard by the jury. See 378 U.S. at 376-77, 84 S.Ct. at 1780-81. At this hearing, “both the underlying factual issues and the voluntariness of [the] confession [must be] actually and reliably determined.” Id. at 380, 84 S.Ct. at 1782. The usual remedy for failing to hold a hearing consistent with the requirements of Jackson v. Denno is to remand to the trial court for a new hearing on the issue of voluntariness. See id. at 393-94, 84 S.Ct. at 1789-90. A habeas petitioner is not, however, automatically entitled to a new hearing “merely because he can point to shortcomings in the procedures used to decide the issue of voluntariness in the state courts.” Procunier v. Atchley, 400 U.S. 446, 451, 91 S.Ct. 485, 488, 27 L.Ed.2d 524 (1971). In stead, to be entitled to a new hearing on the voluntariness issue, petitioner “must also show his version of events, if true, would require the conclusion that his confession was involuntary.” Id. “A defendant’s confession is involuntary if the government’s conduct causes the defendant’s will to be overborne and ‘his capacity for self-determination critically impaired.’” United States v. McCullah, 76 F.3d 1087, 1101 (10th Cir.1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2046-47, 36 L.Ed.2d 854 (1973)), cert. denied, — U.S. -, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997). “In determining whether the defendant’s will was overborne in" }, { "docid": "6712460", "title": "", "text": "II. STANDARD OF REVIEW “In reviewing the district court’s order granting or denying a motion to suppress, this court accepts the district court’s factual findings unless clearly erroneous and considers the evidence in the light most favorable to the district court’s determination.” United States v. Toles, 297 F.3d 959, 965 (10th Cir.2002). “We are mindful that at a hearing on a motion to suppress, the credibility of the witnesses and the weight given to the evidence, as well as inferences and conclusions to be drawn therefrom, are matters for the trial judge.” Id. (quotation omitted). However, “[w]e review de novo the ultimate issue of whether a statement was voluntary, taking into account the totality of the circumstances surrounding the confession.” Minjares-Alvarez, 264 F.3d at 984 (quotations, citation omitted). In conducting this review, this “court must examine the entire record and make an independent determination of the ultimate issue of volun-tariness.” United States v. Lugo, 170 F.3d 996, 1004 (10th Cir.1999) (quotation omitted). III. ANALYSIS The Government bears the burden of showing, by a preponderance of the evidence, that a confession is voluntary. See Missouri v. Seibert, 542 U.S. 600, 608 n. 1, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The question this court must resolve is whether the confession [is] the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir.1993) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)); see also Schneckloth v. Bustamante, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Further, “[w]hen the government obtains incriminating statements through acts, threats, or promises which cause the defendant’s will to be overborne, it violates the defendant’s Fifth Amendment rights and the statements are inadmissible at trial as evidence of guilt.” Toles, 297 F.3d at 965. This court determines the" }, { "docid": "9697730", "title": "", "text": "-, 117 S.Ct. 363, - L.Ed.2d - (1996); Bryan, 820 F.2d at 219-20 (collecting cases). Yet: Whether a defendant made a voluntary, knowing and intelligent waiver of his Miranda rights is distinct from the issue of whether, under the totality of the circumstances, the challenged statement was involuntary. Bryan, 820 F.2d at 219. A court may find that a defendant made a valid waiver and yet still hold that a confession was involuntary. Baskin, 956 F.2d at 145. The ultimate question whether a petitioner’s statement was involuntary, and thus whether it was properly admitted at trial, is one of law. Bryan, 820 F.2d at 219, 220; see also Baskin, 956 F.2d at 145. The Supreme Court has explained why: Although sometimes framed as an issue of “psychological fact,” Culombe v. Connecticut, 367 U.S. [568], at 603, 81 S.Ct. [1860], at 1879 [6 L.Ed.2d 1037] [(1961)], the dispositive question of the voluntariness of a confession has always had a uniquely legal dimension. It is telling that in eon- fession cases coming from the States, this Court has consistently looked to the Due Process Clause of the Fourteenth Amendment to test admissibility.' See, e.g., Mincey v. Arizona, 437 U.S. [385], at 402, 98 S.Ct. [2408], at 2418 [57 L.Ed.2d 290] [ (1978) ]. The locus of the right is significant because it reflects the Court’s consistently held view that the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne. See, e.g., Gallegos v. Colorado, 370 U.S. 49, 51, 82 S.Ct. 1209, 1211, 8 L.Ed.2d 325 (1962) (suggesting that “a compound of two influences” requires that some confessions be condemned); Culombe v. Connecticut, supra, 367 U.S., at 605, 81 S.Ct., at 1880 (describing voluntariness as an “amphibian”). This hybrid quality of the voluntariness inquiry, subsuming, as it does, a “complex of values,” Blackburn v. Alabama, 361 U.S. [199], at 207, 80 S.Ct." }, { "docid": "22754862", "title": "", "text": "confessed to each of the crimes of which he was convicted before the June 15th interrogation took place. As a result, Abu Ali’s answers to the questions submitted by the FBI on June 15th were cumulative. See United States v. Seidman, 156 F.3d 542, 558 (4th Cir.1998) (“ ‘Improper admission of evidence which is cumulative of matters shown by admissible evidence is harmless error.’ ”) (quoting Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir.1985)). We are thus confident that the admission of Abu Ali’s responses to the June 15th questions did not substantially sway the jury verdict. Therefore, any error in admitting these statements was harmless. C. Abu Ali next claims that all of his statements and confessions while in Saudi custody should have been suppressed as involuntary. The district court rejected this argument, finding that the government had “demonstrated by a ‘preponderance of the evidence’ that any incriminating statements” made by Abu Ali while in Saudi custody in June and July, 2003, were “voluntary” and so admissible at trial. Abu Ali, 395 F.Supp.2d at 342. When Miranda warnings are unnecessary, as in the case of an interrogation by foreign officials, we assess the voluntariness of a defendant’s statements by asking whether the confession is “the product of an essentially free and unconstrained choice by its maker.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). If it is, “it may be used against him.” Id. at 602, 81 S.Ct. 1860. But, if the defendant’s “will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Id. see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The government acknowledges that “[t]he crucial inquiry is whether [Abu Ali’s] will has been ‘overborne,’ ” and maintains that it was not; Abu Ali, of course, contends that it was. In evaluating whether a defendant’s will has been overborne, courts must assess the totality of the circumstances, taking into account characteristics of the accused, and details of the interrogation." }, { "docid": "18958445", "title": "", "text": "to counsel, the voluntariness of the second confession is determined by the totality of the circumstances. The earlier, unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent confession. 32 MJ at 79. An assessment of “the totality of all the surrounding circumstances” includes “both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Supreme Court has described the test for actual coercion as follows: Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.). In Elstad, the Supreme Court stated: “A subsequent administration of Miranda [384 U.S. 436, 444, 86 S.Ct. 1602 (1966) ] warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” 470 U.S. at 314, 105 S.Ct. 1285, quoted in Murphy, 39 MJ at 488, and United States v. Young, 49 MJ 265, 267 (1998). Thus, “[t]he necessary inquiry is whether the confession is the product of an essentially free and unconstrained choice by its maker.” United States v. Bubonics, 45 MJ 93, 95 (1996). If there has been an earlier unwarned statement, “the absence of a ‘cleansing’ warning before the subsequent statement” is one of the “circumstances to be considered in determining voluntariness.” United States v. Lichtenhan, 40 MJ 466, 470 (CMA 1994). Interrogation of a suspect in custody must cease if the suspect requests counsel. Mil.R.Evid. 305(f)(2). An ambiguous comment or request, however, does not require that interrogation cease. A request for counsel must be articulated “sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to" }, { "docid": "23178840", "title": "", "text": "that Appellant was given Miranda warnings so the admissibility of the confession turns' on whether it was voluntary. Davis v. North Carolina, 384 U.S. at 740, 86 S.Ct. 1761. For standards of voluntariness we refer to a pre-Miranda line of cases beginning with Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), which held that the admission of an involuntary confession in a criminal prosecution violates due process. Appellate courts have a duty to examine the entire record and make an independent determination on the voluntariness of a confession. Davis v. North Carolina, 384 U.S. at 741-42, 86 S.Ct. 1761; United States v. Dye, 508 F.2d 1226, 1232 (6th Cir. 1974). In determining whether a confession was voluntary, courts focus on the state of mind of the accused at the time the confession was made. See, e. g., Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). The central inquiry of a court considering the voluntariness of a confession is whether the confession was the product of free and rational choice: The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. at 1879. See also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In deciding whether an accused’s will has been overborne, courts have looked to the totality of the circumstances surrounding the confession, both the characteristics of the accused and the details of the interrogation, and determined their psychological impact on an accused’s ability to resist pressures to confess. Schneckloth v. Bustamonte, 412 U.S. at 226, 93 S.Ct. 2041; Culombe v. Connecticut, 367 U.S. at 602," }, { "docid": "6151311", "title": "", "text": "Miranda rights were violated as well. Previous cases deciding whether confessions are voluntary “yield no talismanic definition of ‘voluntariness,’ mechanically applicable to the host of situations where .the question has arisen.” Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). “Voluntariness,” in the constitutional sense, is so difficult to define because almost anything the police do is likely to influence the accused to some degree; even a mildly phrased question, asked after proper warnings, places some pressure on the defendant to give an answer. It is clear that not all such answers are constitutionally involuntary. But it is also clear that at some point the pressure can become too insistent; we then say that the responses elicited are “involuntary” and cannot be used by the prosecution. In its efforts to define how much pressure is too much, however, the Supreme Court has only concatenated metaphors. To be voluntary a confession must be “the product of an essentially free and unconstrained choice.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). The decision to confess must be “freely self-determined,” Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), “the product of a rational intellect and a free will,” Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The defendant’s “will to resist,” Rogers v. Richmond, 365 U.S. at 544, 81 S.Ct. 735, must not be overborne; nor can his ¿‘capacity for self-determination [be] critically impaired,” Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. 1860. By themselves these phrases are not altogether helpful, but they do alert us to the two basic reasons that involuntary confessions cannot be used. First, they are unreliable, so admitting them into evidence denies the defendant due process of law. See, e. g. Michigan v. Tucker, 417 U.S. 433, 448-49, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (1936). Second, even using an accurate involuntary confession against a defendant violates the" }, { "docid": "17034065", "title": "", "text": "first suppression hearing, his subsequent testimony provides enough evidence to support the trial judge’s conclusion that Muniz requested counsel only once. Moreover, there is reason to disbelieve Muniz’s testimony given at the suppression hearings. Given the record, therefore, Muniz has not established “by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C..§ 2254(d). B. Muniz challenges the voluntariness of his confession. A confession is voluntary if it is “the product of a rational intellect and a free will.” Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (internal quotations omitted). The defendant, therefore, must show that but for police coercion he would not have given the confession. See Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S.Ct. 515, 519-20, 93 L.Ed.2d 473 (1986). “[T]he ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.” Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985). Subsidiary factual questions, however, are entitled to a presumption of correctness: “[Subsidiary questions, such as length and circumstances of the interrogation, the defendant’s prior experience with the Miranda warnings, often require the resolution of conflicting testimony of police and defendant. The law is therefore clear that state-court findings on such matters are conclusive on the habeas court if fairly supported by the record....” Id. at 117, 106 S.Ct. at 453. Accordingly, using the presumptively correct factual findings of the state court, we reweigh de .novo the volun-tariness calculation. “Whether the pólice engaged in the coercive tactics alleged by the defendant is a subsidiary fact; as such, the trial court’s finding is entitled to deference on habeas review if it is supported in the record.” Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir.1993) (citation omitted). The record supports the trial court’s factual findings that Shirley did not promise leniency in exchange for the confession. There is also sufficient evidence to support the finding that Shirley did not condition his" }, { "docid": "6712461", "title": "", "text": "the evidence, that a confession is voluntary. See Missouri v. Seibert, 542 U.S. 600, 608 n. 1, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The question this court must resolve is whether the confession [is] the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir.1993) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)); see also Schneckloth v. Bustamante, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Further, “[w]hen the government obtains incriminating statements through acts, threats, or promises which cause the defendant’s will to be overborne, it violates the defendant’s Fifth Amendment rights and the statements are inadmissible at trial as evidence of guilt.” Toles, 297 F.3d at 965. This court determines the voluntariness of a confession based upon the totality of the circumstances, considering “both the characteristics of the accused and the details of the interrogation.” Id. at 965-66. “No single factor is determinative.” Lugo, 170 F.3d at 1004. The Government first argues that the district court erred by basing its decision to suppress Lopez’s confessions on a single factor — that Agent Hopper induced Lopez’s confessions by promising him leniency. The district court did note that “[i]f ‘a policeman ... has made a promise of ... leniency,’ the resulting statement is ‘the product of inducement, and thus’ involuntary.” Reading the district court’s decision in its entirety, however, it is clear that the district court properly considered and weighed all the factors relevant to the voluntariness of Lopez’s confessions. See Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). A. First confession. We now turn to the question of whether Lopez’s first confession made during the second interview, on the evening of May 18, was voluntary. The voluntariness determination reflects an accommodation," }, { "docid": "21602197", "title": "", "text": "such federal consequences. The situation can be viewed in several ways. The first approach, and that argued by Long, is to view this as a question of whether Long voluntarily confessed. \"[T]he Court’s confession cases hold that the ultimate issue of ‘voluntariness’ is a legal question requiring independent federal determination.” Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985); United States v. Hawkins, 823 F.2d 1020, 1022-23 & n. 1 (7th Cir.1987). Therefore we conduct a de novo review of voluntariness following the legal standard set out in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Under Schneckloth we consider the totality of the circumstances: “Is the confession a product of an essentially free and unconstrained voice by his maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused; his lack of education; or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep. In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. 412 U.S. at 225-26, 93 S.Ct. at 2046-47 (citations omitted) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)). Following only the criteria set out in Schneckloth, the conclusion that Long’s statement was voluntary is inescapable. The questioning was conducted in a cooperative manner; Miranda" }, { "docid": "4019883", "title": "", "text": "liberty,” id. at 455, 86 S.Ct. at 1618, because the circumstances are inherently coercive. Police have no right to question a suspect who is in their hands; it is the suspect that has a constitutional right to remain silent. Id. at 460, 86 S.Ct. at 1620. Thus, it follows that only those statements a suspect makes “in the unfettered exercise of his own will” may be used against him, Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), and a confession is voluntary only when it is “truly ... the product of his free choice.” Miranda, 384 U.S. at 458, 86 S.Ct. at 1619. A confession is not self-determined when brought about by circumstances that caused the petitioner’s will to be overborne at the time he confessed. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). A. What Rule Applies The initial question that we must resolve is what standard guides us in resolving the ultimate question of voluntariness: “ ‘Is the confession the product of an essentially free and unconstrained choice by its maker?’ ” Schneckloth v. Busta- monte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)). Petitioner argues that Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), requires that a confession induced by “ ‘any direct or implied promises, however slight,’ ” must be suppressed. Id. at 542-43, 18 S.Ct. at 186-87 (quoting 3 Russell on Crimes 478 (6th ed. 1896)), and that this Circuit has adopted the rule in Bram, pointing to United States v. Fisher, 700 F.2d 780, 783 (2d Cir.1983). Petitioner concedes that we employ a “totality of the circumstances” rule, but argues that Bram’s continued viability independently mandates suppression of Green’s confession because of Detective Hazel’s repeated promises to help him. Petitioner misreads the Supreme Court’s and our decisions. There are not two rules — standing as twin lighthouses — to guide a reviewing court" }, { "docid": "5159522", "title": "", "text": "Rules of Evidence define an “involuntary” statement, inter alia, as one which is taken in violation of the due process clause or through the use of coercion, unlawful influence, or unlawful inducement. Nevertheless, we must turn to the precedents to determine what these phrases mean in actual application. The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Culombe v. Connecticut, 367 U.S. 568, 602, 815 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). The totality of the circumstances, including the characteristics of the accused and the nature of the interrogation, are considered in applying this test. Schneckloth v. Bustamonte, 412 U.S. 218, 225-226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Two noteworthy cases have applied these principles to the effects of intoxicants on the voluntariness of statements. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), dealt with drugs given by a police physician to ease the symptoms of withdrawal from narcotics. If an individual’s “will was overborne” or if his confession was not “the product of a rational intellect and a free will,” his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. Id. at 307, 83 S.Ct. at 754 (footnotes, citations omitted). Gladden v. Unsworth, 396 F.2d 373 (9th Cir.1968), applied Townsend v. Sain to a situation which, like the case at bar, involved voluntary alcohol intoxication. If by reason of mental illness, use of drugs, or extreme intoxication, the confession in fact could not be said to be the product of a rational intellect and a free will, to the test" }, { "docid": "22871395", "title": "", "text": "have influenced Chalan to attend the interview, we are not convinced that this influence sufficiently restrained Chalan’s freedom so as to necessitate the safeguards required by Miranda. We agree with the trial court that Chalan’s desire not to show disrespect toward the Governor does not render the. questioning custodial. Even though defendant’s Miranda rights were not violated, his statements would nevertheless be inadmissible if they were made involuntarily. For purposes of testing the admissibility of a suspect’s statements, voluntariness depends upon an assessment of “the totality of all the surrounding circumstances,” including “both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); see also Culombe v. Connecticut, 367 U.S. 568, 606, 81 S.Ct. 1860, 1881, 6 L.Ed.2d 1037 (1961); United States v. Falcon, 766 F.2d 1469, 1476 (10th Cir.1985). The ultimate inquiry in determining voluntariness is as follows: “Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Culombe, 367 U.S. at 602, 81 S.Ct. at 1879; see also Schneckloth, 412 U.S. at 225-26, 93 S.Ct. at 2046-47; United States v. Fountain, 776 F.2d 878, 885 (10th Cir.1985); United States v. Brown, 540 F.2d 1048, 1053 (10th Cir.1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977). In assessing the circumstances that surround a suspect’s responses to interrogation, the Supreme Court has looked at a number of factors, including the age, education, and intelligence of the suspect, the length of his detention and the questioning, and the use of physical punishment. See Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. In no case, however, is any single factor determinative. When a defendant claims that his statements to investigators were involuntary and thus improperly admitted at trial, “it is the duty of an appellate court" }, { "docid": "15773988", "title": "", "text": "Confession We conclude that the finding of the state court judge that the confession was voluntary is not fairly supported by the record. 28 U.S.C. § 2254(d). Our conclusion is reached on the basis of the undisputed evidence derived in a fully developed habeas hearing before the Circuit Court of the City of Buena Vista, Virginia. No specific findings of fact or separate conclusions of law were made by that court, which merely stated the mixed finding of fact and law that the confession “was not coerced or induced but was a voluntary statement and hence was admissible.” Inasmuch as the evidence before the state court was adopted by the court below without further evidentiary hearing, the record in the state court reflects all of the evidence before us for consideration. It has long been recognized that involuntary confessions may be exacted as a result of mental coercion as well as physical abuse. As the Supreme Court stated in Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960): A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of “persuasion.” The ultimate question is whether the pressure, in whatever form, was sufficient to cause the petitioner’s will to be overborne and his capacity for self-determination to be critically impaired. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). Inasmuch as the degree of pressure necessary to crush one’s will varies with the individual and the circumstances of the arrest and detention, a finding of coercion and involuntariness must be based upon a careful consideration of the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In this case it is apparent that the prosecutor and police went to extraordinary lengths to extract from petitioner a confession by psychological means. They learned on the night of petitioner’s arrest of his overriding concern for his girlfriend’s release. This discovery set the stage for" } ]

[ { "docid": "23651026", "title": "", "text": "736. At each stage of the jurisdictional analysis, the plaintiff bears the burden of proof. See 31 U.S.C. § 3731(c); Hagood v. Sonoma County Water Agency, 81 F.3d 1465,1472 (9th Cir.1996); cf. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.2003) (“The burden of proof on a 12(b)(1) issue is on the party asserting jurisdiction.”). A. Have Glaser’s Allegations Been Publicly Disclosed? For purposes of § 3730(e)(4), a “public disclosure” occurs when “the critical elements exposing the transaction as fraudulent are placed in the public domain.” United States ex rel. Feingold v. AdminaStar Fed., Inc., 324 F.3d 492, 495 (7th Cir.2003). Feingold explained that a public disclosure “bring[s] to the attention of the relevant authority that there has been a false claim against the government.” Id. The public-disclosure bar is designed to prevent lawsuits by private citizens in such situations because “[w]here a public disclosure has occurred, that authority is already in a position to vindicate society’s interests, and a qui tam action would serve no purpose.” Id. Glaser contends that the district court erroneously concluded that the CMS investigation into Wound Care’s billing practices constituted a public disclosure, which is a question of law. She believes that unless the allegations of wrongdoing have been widely disseminated, the government must take some affirmative step to publicize its investigation. Nothing in § 3730(e)(4) requires such a showing. To the contrary, we have held that allegations have been publicly disclosed when they appeared in a warning letter from an agency, United States ex rel. Gross v. AIDS Research Alliance-Chi., 415 F.3d 601, 606 (7th Cir.2005); when they were the subject of a government audit, Gear, 436 F.3d at 728; when they were included in reports prepared by a government agency, Feingold, 324 F.3d at 496; or when information about fraudulent behavior has been provided to a “competent public official ... who has managerial responsibility for the very claims being made,” Bank of Farmington, 166 F.3d at 861. Here, the allegations against Wound Care were publicly disclosed in an “administrative ... audit or investigation,” 31 U.S.C. § 3730(e)(4)(A), when" } ]

[ { "docid": "23386777", "title": "", "text": "amendments, Congress deliberately removed a previous provision that barred jurisdiction whenever the government had knowledge of the allegations or transactions in the relator’s complaint. The pre-1986 version of 31 U.S.C. § 3730(d) provided that courts had no jurisdiction over qui tam actions “based on evidence or information the Government had when the action was brought.” See LeBlanc, 913 F.2d at 19 n. 1. In practice, the “government knowledge” bar proved too restrictive of qui tam actions, resulting in under-enforcement of the FCA. See Prawer, 24 F.3d at 325-26. Thus, in 1986, Congress shifted the examination away from the information in the government’s possession and instead looked to whether there was public disclosure of information given to the government. “Congress thus changed the focus of the jurisdictional bar from evidence of fraud inside the government’s overcrowded file cabinets to fraud already exposed in the public domain.” United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 684 (D.C.Cir.1997). The effect of Pfizer’s argument would be to reinstate exactly what Congress eliminated-the “government knowledge” bar. It is an insufficient response to argue, as Pfizer does, that the government knowledge bar created by its reading is a very limited one and applies only where the government official receiving the disclosure is the appropriate investigatory official. Only one court has adopted such a reading. See United States ex rel. Mathews v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir.1999). We find no support in either the language or the history of the statute for such a reading. Indeed, Pfizer’s argument runs directly contrary to our reasoning in Prawer, where we held that “Congress has explicitly deemed a ‘notice’ regime insufficient to protect the government against false claims (indeed it was precisely such a regime that Congress sought to abandon in enacting the 1986 amendments)....” 24 F.3d at 329. The 1986 amendments “broadened the universe of potential [qui tam] plaintiffs, with only four exclusions” enumerated in § 3730(e). LeBlanc, 913 F.2d at 19. Congress amended the statute to “encourage more private enforcement suits.” Id. (quoting S.Rep. No. 93-345, at 23-24 (1986), reprinted" }, { "docid": "21507987", "title": "", "text": "which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information. 31 U.S.C.A. § 3730(e)(4) (West 2003). The structure of the public disclosure bar thus requires courts to answer three questions: Was there a public disclosure? If there was a public disclosure, was the qui tam action based on the public disclosure? If the action was based on the public disclosure, was the qui tam plaintiff an original source? See Grayson v. Advanced Mgmt. Tech, Inc., 221 F.3d 580, 582 (4th Cir.2000); see also Minnesota Ass’n of Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032, 1042 (8th Cir.2002); United States v. Bank of Farmington, 166 F.3d 853, 859 (7th Cir.1999). If either of the first two questions is answered in the negative, the district court has subject matter jurisdiction over the qui tam action. If the first two questions are answered in the affirmative, however, subject matter jurisdiction exists only if the last question is also answered affirmatively. On appeal, Wilson contends that the Audit Report and DEHNR Report do not qualify as public disclosures under the FCA and that the district court therefore erred by concluding that these reports deprived it of subject matter jurisdiction. Although § 3730(e)(4)(A) provides that an administrative report, audit, or investigation can amount to a jurisdiction-stripping public disclosure, Wilson argues that the statute applies only to federal administrative reports or audits. Because the audit was conducted by local accountants at Graham County’s request and the Audit Report was provided to Graham County officials only, Wilson contends that there was no public disclosure within the meaning of § 3730(e)(4)(A). Wilson likewise argues that the DEHNR Report, which summarized a state investigation and was provided only to state and local officials, was not a public disclosure within the meaning of § 3730(e)(4)(A). For their part, the defendants contend that the district court correctly determined that the public disclosure bar deprived it of subject matter jurisdiction over Wilson’s claims. The defendants argue that there is no language in §" }, { "docid": "23651016", "title": "", "text": "of Wound Care’s alleged fraudulent billing practices. We. take this opportunity to revisit our prior interpretation of the phrase “based upon” in § 3730(e)(4)(A). In United States v. Bank of Farmington, we held that an FCA lawsuit is “based upon” a public disclosure and therefore subject to the jurisdictional bar of § 3730(e)(4) when the lawsuit “depends essentially upon publicly disclosed information and is actually derived from such information.” 166 F.3d 853, 864 (7th Cir.1999). Although we reaffirmed the Bank of Farmington holding in United States ex rel. Fowler v. Caremark RX, L.L.C., we acknowledged that it is the minority interpretation. 496 F.3d 730, 738 (7th Cir.2007). To date, eight other circuits have read the phrase “based upon” in § 3730(e)(4)(A) more broadly, holding that an FCA lawsuit is “based upon” a public disclosure when the relator’s complaint describes allegations or transactions that are substantially similar to those already in the public domain. We now conclude that the majority interpretation of the phrase “based upon” in the FCA’s jurisdictional bar—which we acknowledged in Caremark was supported by “powerful arguments,” 496 F.3d at 738—is the better one. The approach we adopted in Bank of Farmington is problematic because it essentially eliminates the “original source” exception to the public-disclosure bar and therefore upsets the balance struck in § 3730(e)(4) between two competing policy goals: blocking opportunistic lawsuits filed by plaintiffs seeking to capitalize on information already in the public domain and encouraging lawsuits by relators who have firsthand knowledge of fraud against the government. When an FCA relator’s allegations are substantially similar to information about an alleged fraud that is already publicly disclosed, the statute permits the relator to avoid the jurisdictional bar only if he has “direct and independent knowledge of the information on which the allegations are based” and “voluntarily provided the information to the Government before filing” a qui tam action. 31 U.S.C. § 3730(e)(4)(B). Yet under Bank of Farmington’s understanding of when an FCA lawsuit is “based upon” publicly disclosed information, the original-source exception serves no purpose. That is, if the jurisdictional bar kicks in only if the" }, { "docid": "4998184", "title": "", "text": "dismiss for lack of subject-matter jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004) (explaining the distinction). Accordingly, we \"need not presume the truthfulness of the plaintiffs’ allegations” and may “look beyond the complaint ... without having to convert the motion into one for summary judgment.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). Here, however, we accept relators’ version of the facts as true for purpose of their public-disclosure argument because, even under their version, relators’ argument would fail. . We also note that the majority of circuits that have considered the issue have concluded that disclosure to the government, without more, is not a public disclosure under § 3730(e)(4)(A). See, e.g., United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 728 (1st Cir.2007) (\"In our view, a 'public disclosure’ requires that there be some act of disclosure to the public outside of the government.”); Kennard v. Comstock Res., Inc., 363 F.3d 1039, 1043 (10th Cir.2004) (holding that the public-disclosure requirement \"clearly contemplates that the information be in the public domain in some capacity and the Government is not the equivalent of the public domain”); United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1499-1500 (11th Cir.1991) (stating that a report Submitted to government officials was not a public disclosure under the Act). But see United States v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir.1999) (\"Disclosure to an official authorized to act for or to represent the community on behalf of government can be understood as public disclosure.”). . Relators' opening brief dedicates only three pages to public disclosure and the original-source exception. Relators’ reply brief, on the other hand, dedicates 24 of its 25 pages to these issues. . More than one week after briefing on appellees’ motion to dismiss closed, relators filed an \"Ex Parte Application for Leave to File Additional Documents,\" which included new declarations of relators and relators’ counsel. As noted in Section III, infra, relators have proffered no argument as to why we should disturb the district court’s discretionary decision to refuse" }, { "docid": "11944745", "title": "", "text": "a disclosure outside of the government. See, e.g., United States ex rel. Chattanooga-Hamilton Cty. Hosp. Auth., 782 F.3d 260, 265-66 (6th Cir. 2015); United States ex rel. Little v. Shell Exploration Prod. Co., 602 Fed.Appx. 959, 974 (5th Cir. 2015); United States ex rel. Wilson v. Graham Cnty. Soil & Water Conservation Dist., 777 F.3d 691, 696-98 (4th Cir. 2015); United States ex rel. Oliver v. Philip Morris USA Inc., 763 F.3d 36, 42 (D.C. Cir. 2014); United States ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195 (9th Cir. 2009); United States ex rel. Maxwell v. Kerr-McGee Oil & Gas Corp., 540 F.3d 1180, 1184 (10th Cir. 2008); United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 730-31 (1st Cir. 2007); United States ex rel. Cantekin v. Univ. of Pittsburgh, 192 F.3d 402, 408 (3d Cir. 1999); United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1494 (11th Cir. 1991). These courts have reasoned that “the phrase ‘public disclosure’ would be superfluous” if “providing information to the government were enough to trigger the bar.” Rost, 507 F.3d at 729. Equating the terms “government” and “public,” they have opined, would also be inconsistent with language elsewhere in the FCA and with the purpose of the public disclosure bar, which “clearly contemplates that the information be in the public domain in some eapacity[,] and the Government is not the equivalent of the public domain.” Kennard v. Comstock Res., Inc., 363 F.3d 1039, 1043 (10th Cir. 2004). The Second Circuit has not yet opined on this issue. In light of that vacuum, Allergan invites the Court to follow the Seventh Circuit, the sole court of appeals to conclude that disclosure to a competent public figure, without more, satisfies the “public disclosure” requirement. See United States ex rel. Mathews v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir. 1999) (holding that disclosure to a government official “authorized to act for or to represent the community on behalf of government can be understood as public disclosure”); see also Cause of Action v. Chi. Transit Auth., 815 F.3d 267," }, { "docid": "8426691", "title": "", "text": "under the FCA. Id. at 857-58. With those purposes in mind, we shall ascertain the meaning of the term “public disclosure” in the statute. WThen interpreting the meaning of a statute, we look first to the text; the text is the law, and it is the text to which we must adhere. See, e.g., Miller Aviation v. Milwaukee County Bd. of Sup’rs., 273 F.3d 722, 730 (7th Cir.2001); United States v. Evans, 148 F.3d 477, 483 n. 8 (5th Cir.1998). This tenet of statutory interpretation leads us to join two of our sister circuits in holding that a “public disclosure” exists under § 3730(e)(4)(A) when the critical elements exposing the transaction as fraudulent are placed in the public domain. United States ex rel. Rabushka v. Crane Co., 40 F.3d 1509, 1512 (8th Cir.1994); United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 654 (D.C.Cir.1994). This definition makes sense both when standing alone as a matter of diction and when read in relation to the remainder of the statute. We begin with diction. Congress enacted § 3730(e)(4)(A) in 1986. Contemporaneous definitions of “disclose” include: “to open up”; “to expose to view”; and “to make known or public.” Webster’s Ninth New Collegiate Dictionary 360 (1987). Although “public” has several definitions, the most germane to this topic is “accessible to or shared by all members of the community.” Id. at 952. These definitions comport with our holding here that a public disclosure happens when the critical elements exposing the transaction as fraudulent are placed in the public domain. Similarly, this concept of what constitutes a public disclosure makes sense when read in the context of the entire statute because it is consistent with § 3730(e)(4)(A)’s function of prohibiting parasitic lawsuits. It also comports with the FCA’s broader goal of encouraging lawsuits based on information that is not available to the public, and thus not available to the governmental authorities with direct responsibility for the claim in question. See Mathews, 166 F.3d at 858. This definition of “public disclosure” is consistent with our holding in Mathews. There, when analyzing discovery" }, { "docid": "11981964", "title": "", "text": "has forbidden its disclosure, is to distort the ordinary meaning of the words and in fact to read into the statute provisions that Congress did not enact. Accordingly, we follow the D.C. Circuit, which held that “discovery material which has not been filed with the court and is only theoretically available upon the public’s request” is not “publicly disclosed” within the meaning of § 3730(e)(4)(A). United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 652 (D.C.Cir.1994). As that court remarked, “[u]ntil discovery materials are filed with the court, we doubt that the discovery process conducted between two private litigants could itself constitute a public disclosure_[Unfiled discovery materials] are only potentially in the public eye.” Id. at 652-653. As the 10th Circuit observed in a different context, merely “conjectural or speculative ‘accessibility’ to the information [does not] bar[ ] the plaintiffs qui tarn action.” United States ex rel. Ramseyer v. Century Healthcare Corp. 90 F.3d 1514, 1521 (10th Cir.1996). We have previously held that a letter or other “communication between two private parties [themselves] is not public disclosure under this section.” Hindo, 65 F.3d at 613 (citing Quinn, 14 F.3d at 652-653). There is no reason to treat unfiled discovery materials differently. To treat them the same best serves the policy of the False Claims Act, since barring actions based on information which was merely potentially but not actually opened up to view does not discourage parasitism. It only deters diligence in uncovering fraud. Nonetheless, the information about the Bank’s misrepresentations upon which Mathews bases her qui tarn action was indeed publicly disclosed because the Bank had disclosed it to a competent public official, here Victor Rhea of the FmHA. Disclosure of information to a competent public official about an alleged false claim against the government we hold to be public disclosure within the meaning of § 3730(e)(4)(A) when the disclosure is made to one who has managerial responsibility for the very claims being made. This construction accords with a standard meaning of “public,” which can also be defined as “authorized by, acting for, or representing the" }, { "docid": "4998185", "title": "", "text": "be in the public domain in some capacity and the Government is not the equivalent of the public domain”); United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1499-1500 (11th Cir.1991) (stating that a report Submitted to government officials was not a public disclosure under the Act). But see United States v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir.1999) (\"Disclosure to an official authorized to act for or to represent the community on behalf of government can be understood as public disclosure.”). . Relators' opening brief dedicates only three pages to public disclosure and the original-source exception. Relators’ reply brief, on the other hand, dedicates 24 of its 25 pages to these issues. . More than one week after briefing on appellees’ motion to dismiss closed, relators filed an \"Ex Parte Application for Leave to File Additional Documents,\" which included new declarations of relators and relators’ counsel. As noted in Section III, infra, relators have proffered no argument as to why we should disturb the district court’s discretionary decision to refuse to accept these untimely materials, and, therefore, we limit our review to the TAC and the motion papers that the district court did accept. REINHARDT, Circuit Judge, dissenting: I agree with the majority that the Weatherford suit constituted a public disclosure, thereby triggering the requirement that the relators be “original sources” in order to proceed with their qui tarn suit. I disagree, however, with the majority’s assessment of the record, and conclude that Szerlip has met her burden of showing “original source” status, thereby establishing jurisdiction, by a preponderance of the evidence. As the majority correctly states, a qui tarn relator is an “original source” of the action if she “[1] has direct and independent knowledge of the information on which the allegations are based and [2] has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” 31 U.S.C. § 3730(e)(4)(B). In addition, our circuit requires that the relator has “had a hand in the public disclosure of allegations that are a part of" }, { "docid": "1630331", "title": "", "text": "disclosed — the district court quoted and almost exclusively relied on a Seventh Circuit case, United States v. Bank of Farmington, 166 F.3d 853 (7th Cir.1999), overruled on other grounds by, Glaser v. Wound Care Consultants, Inc., 570 F.3d 907 (7th Cir.2009). There the court held that information on which the relator based her qui tarn action had been “publicly disclosed” because it had been disclosed “to a competent public official.” Id. at 861. Reasoning that “ ‘public’ ... can also be defined as ‘authorized by, acting for, or representing the community,’ ” the Bank of Farmington court held that a disclosure, “not actually made to the public at large,” but rather to a “public official,” sufficed to trigger the jurisdictional bar in § 3730(e)(4)(A). Id. (quoting 12 Oxford English Dictionary 779 (2d ed.1989)). Here, the district court similarly held that because the distribution lists accompanying the Audit Report and the USDA Report included federal agencies with relevant oversight, the reports had been publicly disclosed. No other circuit, however, has adopted the Seventh Circuit’s interpretation of the public disclosure requirement. Rather, the other five circuits to consider the question have rejected the Seventh Circuit’s approach. See United States ex rel. Oliver v. Philip Morris USA Inc., 763 F.3d 36, 42 (D.C.Cir.2014); United States ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1200 & n. 3 (9th Cir.2009); United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 730 (1st Cir.2007), overruled on other grounds by Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008); Kennard v. Comstock Res., Inc., 363 F.3d 1039, 1043 (10th Cir.2004); United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1499-1500 (11th Cir.1991); see also United States ex rel. Beauchamp v. Academi Training Ctr., Inc., 933 F.Supp.2d 825, 844 (E.D.Va.2013); United States v. Smith & Nephew, Inc., 749 F.Supp.2d 773, 782-84 (W.D.Tenn.2010). Until now, we have had no occasion to weigh in on this issue. Today we too reject the Seventh Circuit’s view, holding instead that “a ‘public disclosure’ requires that" }, { "docid": "23651027", "title": "", "text": "the district court erroneously concluded that the CMS investigation into Wound Care’s billing practices constituted a public disclosure, which is a question of law. She believes that unless the allegations of wrongdoing have been widely disseminated, the government must take some affirmative step to publicize its investigation. Nothing in § 3730(e)(4) requires such a showing. To the contrary, we have held that allegations have been publicly disclosed when they appeared in a warning letter from an agency, United States ex rel. Gross v. AIDS Research Alliance-Chi., 415 F.3d 601, 606 (7th Cir.2005); when they were the subject of a government audit, Gear, 436 F.3d at 728; when they were included in reports prepared by a government agency, Feingold, 324 F.3d at 496; or when information about fraudulent behavior has been provided to a “competent public official ... who has managerial responsibility for the very claims being made,” Bank of Farmington, 166 F.3d at 861. Here, the allegations against Wound Care were publicly disclosed in an “administrative ... audit or investigation,” 31 U.S.C. § 3730(e)(4)(A), when CMS sent a letter to Dr. Miller in March 2005 demanding repayment for Wound Care’s improper use of Dr. Miller’s billing code. CMS also made clear to Wound Care beginning in January 2005 that it was actively investigating its billing practices. Although Glaser correctly notes that mere governmental awareness of wrongdoing does not mean a public disclosure oc curred, see Bank of Farmington, 166 F.3d at 860 n. 5, “the purpose of a public disclosure is to alert the responsible authority that fraud may be afoot, and that purpose is served where that authority has itself issued [documents] containing information that substantiates an allegation of fraud,” Feingold, 324 F.3d at 496. This is not a case where the government was simply aware of Wound Care’s billing practices. Rather, the appropriate entity responsible for investigating claims of Medicare abuse had knowledge of possible improprieties with Wound Care’s billing practices and was actively investigating those allegations and recovering funds. See Bank of Farmington, 166 F.3d at 861 (“[Disclosure to a public official with direct responsibility for the" }, { "docid": "1630330", "title": "", "text": "sole question at issue is whether the reports were “publicly disclosed” prior to the time Wilson filed this action. The plain meaning of the phrase “public disclosure” suggests that they were not. “Disclosure” requires an affirmative act. See Webster’s Third New International Dictionary 645 (1993) (defining “disclose” as “to open up to general knowledge,” “to expose to view,” and “to make known”). Such an act, in turn, requires a recipient— a person, group, or entity to whom the information is revealed. By specifying that a “disclosure” must be “public,” Congress indicated that only disclosures made to the public at large or to the public domain had jurisdictional significance. Neither the Audit Report nor the USDA Report was distributed to, or intended to be distributed to, the public. Indeed, the authors of both reports attached to them distribution lists, limiting distribution to government entities. And nothing in the record suggests that either report made it further than its limited intended audience until Wilson filed suit. In holding to the contrary — that the reports were publicly disclosed — the district court quoted and almost exclusively relied on a Seventh Circuit case, United States v. Bank of Farmington, 166 F.3d 853 (7th Cir.1999), overruled on other grounds by, Glaser v. Wound Care Consultants, Inc., 570 F.3d 907 (7th Cir.2009). There the court held that information on which the relator based her qui tarn action had been “publicly disclosed” because it had been disclosed “to a competent public official.” Id. at 861. Reasoning that “ ‘public’ ... can also be defined as ‘authorized by, acting for, or representing the community,’ ” the Bank of Farmington court held that a disclosure, “not actually made to the public at large,” but rather to a “public official,” sufficed to trigger the jurisdictional bar in § 3730(e)(4)(A). Id. (quoting 12 Oxford English Dictionary 779 (2d ed.1989)). Here, the district court similarly held that because the distribution lists accompanying the Audit Report and the USDA Report included federal agencies with relevant oversight, the reports had been publicly disclosed. No other circuit, however, has adopted the Seventh Circuit’s interpretation" }, { "docid": "11981965", "title": "", "text": "parties [themselves] is not public disclosure under this section.” Hindo, 65 F.3d at 613 (citing Quinn, 14 F.3d at 652-653). There is no reason to treat unfiled discovery materials differently. To treat them the same best serves the policy of the False Claims Act, since barring actions based on information which was merely potentially but not actually opened up to view does not discourage parasitism. It only deters diligence in uncovering fraud. Nonetheless, the information about the Bank’s misrepresentations upon which Mathews bases her qui tarn action was indeed publicly disclosed because the Bank had disclosed it to a competent public official, here Victor Rhea of the FmHA. Disclosure of information to a competent public official about an alleged false claim against the government we hold to be public disclosure within the meaning of § 3730(e)(4)(A) when the disclosure is made to one who has managerial responsibility for the very claims being made. This construction accords with a standard meaning of “public,” which can also be defined as “authorized by, acting for, or representing the community.” 12 OED, at 779. Disclosure to an official authorized to act for or to represent the community on behalf of government can be understood as public disclosure. The point of public disclosure of a false claim against the government is to bring it to the attention of the authorities, not merely to educate and enlighten the public at large about the dangers of misappropriation of their tax money. Disclosure to the public at large is a step in lowering the jurisdictional bar precisely because it is likely to alert the authorities about the alleged fraud. After investigation, they can take the proper steps to deal with it — prosecution, settlements involving repayment of funds, or whatever may be called for in the particular case. Since a public official in his official capacity is authorized to act for and to represent the community, and since disclosure to the public official responsible for the claim effectuates the purpose of disclosure to the public at large, disclosure to a public official with direct responsibility for the claim" }, { "docid": "23386778", "title": "", "text": "It is an insufficient response to argue, as Pfizer does, that the government knowledge bar created by its reading is a very limited one and applies only where the government official receiving the disclosure is the appropriate investigatory official. Only one court has adopted such a reading. See United States ex rel. Mathews v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir.1999). We find no support in either the language or the history of the statute for such a reading. Indeed, Pfizer’s argument runs directly contrary to our reasoning in Prawer, where we held that “Congress has explicitly deemed a ‘notice’ regime insufficient to protect the government against false claims (indeed it was precisely such a regime that Congress sought to abandon in enacting the 1986 amendments)....” 24 F.3d at 329. The 1986 amendments “broadened the universe of potential [qui tam] plaintiffs, with only four exclusions” enumerated in § 3730(e). LeBlanc, 913 F.2d at 19. Congress amended the statute to “encourage more private enforcement suits.” Id. (quoting S.Rep. No. 93-345, at 23-24 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5288-89) (internal quotation marks omitted). Yet Pfizer’s reading would create a new exclusion not articulated in the text. That is inconsistent with the second goal of encouraging productive private enforcement. Pfizer’s interpretation is also contrary to another legislative purpose reflected in the 1986 amendments: it was the Congressional intent, through the requirement of public disclosure, to help keep the government honest in its investigations and settlements with industry. Once allegations are made public, the government can be forced to act by public pressure. See Findley, 105 F.3d at 684 n. 4. Not only would Pfizer’s argument recreate problems Congress sought to eliminate in 1986, but it fails to further Congress’s purpose of discouraging “parasitic” qui tam actions. Prawer, 24 F.3d at 327. If information that could form the basis of a qui tam action is kept confidential and confined to a limited circle of government officials, there is no real danger that a private citizen who does not have “direct and independent knowledge” of that information, see 31 U.S.C. § 3730(e)(4)(B)," }, { "docid": "8426690", "title": "", "text": "“based upon” such public disclosures; and (3) if so, whether the relator is an “original source” of the information contained within the public disclosures. Id. at 859. A. Were the allegations or transactions publicly disclosed? We have explained extensively the historical underpinnings of the FCA in Mathews, see id. at 857-59, and shall not repeat them here. For our purposes, it suffices to reiterate that the function of a public disclosure is to bring to the attention of the relevant authority that there has been a false claim against the government. Id. at 861. Where a public disclosure has occurred, that authority is already in a position to vindicate society’s interests, and a qui tam action would serve no purpose. Id. Wfiiere, on the other hand, a transaction or an allegation of fraud has not been publicly disclosed, society benefits by creating a monetary incentive for a knowledgeable person, called a relator, to identify the problem, present his information to the government, and, where the government declines to prosecute, proceed with a qui tam action under the FCA. Id. at 857-58. With those purposes in mind, we shall ascertain the meaning of the term “public disclosure” in the statute. WThen interpreting the meaning of a statute, we look first to the text; the text is the law, and it is the text to which we must adhere. See, e.g., Miller Aviation v. Milwaukee County Bd. of Sup’rs., 273 F.3d 722, 730 (7th Cir.2001); United States v. Evans, 148 F.3d 477, 483 n. 8 (5th Cir.1998). This tenet of statutory interpretation leads us to join two of our sister circuits in holding that a “public disclosure” exists under § 3730(e)(4)(A) when the critical elements exposing the transaction as fraudulent are placed in the public domain. United States ex rel. Rabushka v. Crane Co., 40 F.3d 1509, 1512 (8th Cir.1994); United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 654 (D.C.Cir.1994). This definition makes sense both when standing alone as a matter of diction and when read in relation to the remainder of the statute. We begin with" }, { "docid": "23651015", "title": "", "text": "SYKES, Circuit Judge. Carol Glaser received medical treatment from Wound Care Consultants and was later contacted by an attorney who told her that Wound Care might have improperly billed Medicaid for her treatment. She filed this qui tam action under the False Claims Act (“FCA”), 31 U.S.C. § 3730, seeking recovery as a relator foi money the government paid as a result of alleged false or fraudulent Medicare and Medicaid claims submitted by Wound Care. But the government was already aware of the possible improprieties in Wound Care’s billing practices and had commenced an investigation more than four months before Glaser filed her lawsuit. Accordingly, the district court dismissed Glaser’s complaint for lack, of subject-matter jurisdiction under 31 U.S.C. § 3730(e)(4), which blocks jurisdiction if the FCA action is “based upon” a “public disclosure” of the alleged fraudulent conduct “unless ... the person bringing the action is an original source of the information.” Glaser appealed. The threshold jurisdictional question in this case requires us to determine whether Glaser’s lawsuit is “based upon” a “public disclosure” of Wound Care’s alleged fraudulent billing practices. We. take this opportunity to revisit our prior interpretation of the phrase “based upon” in § 3730(e)(4)(A). In United States v. Bank of Farmington, we held that an FCA lawsuit is “based upon” a public disclosure and therefore subject to the jurisdictional bar of § 3730(e)(4) when the lawsuit “depends essentially upon publicly disclosed information and is actually derived from such information.” 166 F.3d 853, 864 (7th Cir.1999). Although we reaffirmed the Bank of Farmington holding in United States ex rel. Fowler v. Caremark RX, L.L.C., we acknowledged that it is the minority interpretation. 496 F.3d 730, 738 (7th Cir.2007). To date, eight other circuits have read the phrase “based upon” in § 3730(e)(4)(A) more broadly, holding that an FCA lawsuit is “based upon” a public disclosure when the relator’s complaint describes allegations or transactions that are substantially similar to those already in the public domain. We now conclude that the majority interpretation of the phrase “based upon” in the FCA’s jurisdictional bar—which we acknowledged in Caremark was" }, { "docid": "6752952", "title": "", "text": "facts critical to jurisdiction and coming forth with competent proof. Id. The premise of limited jurisdiction also means the Act “should not be read in a manner that impermissibly expands federal jurisdiction.” MK-Ferguson, 99 F.3d at 1544 (citation omitted). III. DISCUSSION The Act denies a court of jurisdiction over a qui tarn action “based upon the public disclosure of allegations or transactions in a ... civil, ... hearing, ..., unless ... the person bringing the action is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A). The Act defines “original source” to mean “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” 31 U.S.C. § 3730(e)(4)(B). “The FCA’s jurisdictional scheme seeks ‘the golden mean between adequate incentives for whistle-blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own.’ ” United States ex rel. Fine v. Sandia Corp., 70 F.3d 568, 571 (10th Cir.1995) (quoting United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 649 (D.C.Cir.1994)); see United States v. Bank of Farmington, 166 F.3d 853, 858 (7th Cir.1999). At the summary judgment stage, this public disclosure bar to jurisdiction entails four questions: (1) whether the alleged “public disclosure” contains allegations or transactions from one of the listed sources; (2) whether the alleged disclosure has been made “public” within the meaning of the False Claims Act; (3) whether the relator’s complaint is “based upon” this public disclosure; and, if so, (4) whether the relator qualifies as an “original source.” Hafter, 190 F.3d at 1161 (quoting MK-Ferguson Co., 99 F.3d at 1544 (10th Cir.1996)). A court’s decision should begin with the first three issues governing public disclosure, as the “ ‘original source’ issue is necessary only if the court answers the first three questions in the affirmative.” Id. A. Public Disclosure On appeal, Dr. King contests whether King I is a public disclosure and whether the qui" }, { "docid": "8426689", "title": "", "text": "§ 3730(e)(4)(A) provides as follows: No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. Although the statute uses the term “jurisdiction,” and we have discussed application of § 3730(e)(4)(A) as turning on a “jurisdictional bar,” United States ex rel. Mathews v. Bank of Farmington, 166 F.3d 853, 858 (7th Cir.1999), the Supreme Court has held that what we are actually dealing with is an issue of substantive law. Hughes Aircraft Co. v. United States, 520 U.S. 939, 950-51, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997). We review a dismiss al under § 3730(e)(4)(A) de novo, Mathews, 166 F.3d at 859, considering: (1) whether the relator’s allegations have been publicly disclosed; (2) if so, whether the lawsuit is “based upon” such public disclosures; and (3) if so, whether the relator is an “original source” of the information contained within the public disclosures. Id. at 859. A. Were the allegations or transactions publicly disclosed? We have explained extensively the historical underpinnings of the FCA in Mathews, see id. at 857-59, and shall not repeat them here. For our purposes, it suffices to reiterate that the function of a public disclosure is to bring to the attention of the relevant authority that there has been a false claim against the government. Id. at 861. Where a public disclosure has occurred, that authority is already in a position to vindicate society’s interests, and a qui tam action would serve no purpose. Id. Wfiiere, on the other hand, a transaction or an allegation of fraud has not been publicly disclosed, society benefits by creating a monetary incentive for a knowledgeable person, called a relator, to identify the problem, present his information to the government, and, where the government declines to prosecute, proceed with a qui tam action" }, { "docid": "11944746", "title": "", "text": "enough to trigger the bar.” Rost, 507 F.3d at 729. Equating the terms “government” and “public,” they have opined, would also be inconsistent with language elsewhere in the FCA and with the purpose of the public disclosure bar, which “clearly contemplates that the information be in the public domain in some eapacity[,] and the Government is not the equivalent of the public domain.” Kennard v. Comstock Res., Inc., 363 F.3d 1039, 1043 (10th Cir. 2004). The Second Circuit has not yet opined on this issue. In light of that vacuum, Allergan invites the Court to follow the Seventh Circuit, the sole court of appeals to conclude that disclosure to a competent public figure, without more, satisfies the “public disclosure” requirement. See United States ex rel. Mathews v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir. 1999) (holding that disclosure to a government official “authorized to act for or to represent the community on behalf of government can be understood as public disclosure”); see also Cause of Action v. Chi. Transit Auth., 815 F.3d 267, 275-77 (7th Cir. 2016) (declining to reconsider Bank of Farmington). The Court declines that invitation and chooses instead to follow the persuasive reasoning of the nine other Circuits to address the question. That dooms Allergan’s public disclosure argument, as there is no suggestion that Wood’s allegations were public in any form prior to his filing of the first complaint. Instead, Allergan’s argument rests entirely on the proposition that the complaints in Lampkin and Caryatid, although under seal, had previously been disclosed to officials in the federal government. (Docket No. 65 (“Allergan Mem.”) 11; Allergan Reply 6). But a sealed complaint, by definition, does not disclose any information to the “public.” See, e.g., United States ex rel. LeBlanc v. Raytheon Co., 913 F.2d 17, 20 (1st Cir. 1990) (“[T]he district court further assumes that the filing of a qui tam action is itself a ‘public disclosure.’ This cannot be. Such an action is filed under seal without service on anyone other than the United States and remains non-public until the district court enters an order lifting" }, { "docid": "12285204", "title": "", "text": "years before Reagan came onto the scene — BCBS conducted an audit of the UPH cost report for fiscal year 1985, precisely because it believed this characterization of the relationship to be false. Based on this audit and another conducted in 1991, BCBS determined the “true state” of facts — that UPH and ETMC were related entities — and reduced reimbursements for ancillary services and hospital lease payments by a total of approximately $2.25 million. Reagan further argues that the information she later provided to BCBS and HCFA in 1995 cannot be regarded as “publicly disclosed”, because to treat it as such would convert a statutory pre-condition to filing suit — disclosure of the alleged facts to the government — into a jurisdictional bar. Reagan’s disclosure to BCBS and HFCA, however, is not the government disclosure required by § 3730(e)(4)(B). Under the FCA, a qui tarn plaintiff, before filing suit, must voluntarily provide the relevant information to the United States Attorney, FBI, other suitable law enforcement. office, or the agency or official responsible for the particular claim in question. See United States ex rel. Matthews v. Bank of Farmington, 166 F.3d 853, 866 (7th Cir.1999). The explicit terms of the Act require that “[a] copy- of the complaint and written disclosure of substantially all material evidence and information the person possesses” must be served on the government to give it the opportunity to intervene. 31 U.S.C. § 3730(b)(2). The statutorily required government disclosure was thus made in September 1997 when Reagan filed her initial complaint in this case. The BCBS audits and HFCA investigations, on the other ■ hand, were conducted before Reagan initiated this lawsuit and were properly considered public disclosures. We next turn to consider whether Reagan’s FOIA requests also constitute a “public disclosure”. Although this issue has not been considered by this court, it was addressed by the Third Circuit in United States ex rel. Mistick v. Hous. Auth. of the City of Pittsburgh, 186 F.3d 376 (3rd Cir.1999), where the court held that “the disclosure of information in response to a FOIA request is a ‘public" }, { "docid": "12285205", "title": "", "text": "particular claim in question. See United States ex rel. Matthews v. Bank of Farmington, 166 F.3d 853, 866 (7th Cir.1999). The explicit terms of the Act require that “[a] copy- of the complaint and written disclosure of substantially all material evidence and information the person possesses” must be served on the government to give it the opportunity to intervene. 31 U.S.C. § 3730(b)(2). The statutorily required government disclosure was thus made in September 1997 when Reagan filed her initial complaint in this case. The BCBS audits and HFCA investigations, on the other ■ hand, were conducted before Reagan initiated this lawsuit and were properly considered public disclosures. We next turn to consider whether Reagan’s FOIA requests also constitute a “public disclosure”. Although this issue has not been considered by this court, it was addressed by the Third Circuit in United States ex rel. Mistick v. Hous. Auth. of the City of Pittsburgh, 186 F.3d 376 (3rd Cir.1999), where the court held that “the disclosure of information in response to a FOIA request is a ‘public disclosure’” under § 3730(e)(4)(A). Mistick, 186 F.3d at 383. The Mistick court reasoned that the specific purpose of the FOIA was to make certain information available for public scrutiny. Id. The court also found it persuasive that the Supreme Court had held that a FOIA re quest was a “public disclosure” for the purposes of the Consumer Product Safety Act, 15 U.S.C. § 2055(b)(1). Id. (citing Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108-09, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)) (stating that “[a] disclosure pursuant to the FOIA ... seem[s] to be most accurately characterized as a ‘public disclosure’ within the plain meaning of [the Consumer Product Safety Act]”). Finally, -the court concluded that the agency response to the FOIA request “constituted an ‘administrative ... report’ ”, which is an enumerated public disclosure under § 3730(e)(4)(A), because the response (1) “constituted official government action” — i.e. it is administrative — and (2) “provides information and notification regarding the results of the agency’s search for the requested documents” — i.e., it" } ]

[ { "docid": "3563420", "title": "", "text": "LEVIN H. CAMPBELL, Chief Judge. The Secretary of Health and Human Services (“HHS”) appeals from the award of attorneys’ fees to plaintiffs in a suit that had challenged certain Social Security regulations. The fees were awarded by the district court under the Equal Access to Justice Act (“EAJA”). Enacted in 1980, EAJA provides that in some circumstances the United States shall be ordered by the court to pay the attorneys’ fees of a party that prevails against it. The relevant portion of EAJA provides, Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (Supp.1987). Under EAJA, then, absent special circumstances, the government must foot the legal bills of its adversaries in civil cases (other than tort actions), but only if the adversaries “prevail” and if the govern- merit’s position is not “substantially justified.” I. BACKGROUND The class action suit against HHS that resulted in the EAJA award contested HHS procedures for determining eligibility for Social Security disability benefits. Because the course of the underlying litigation bears directly on the attorneys’ fees issue, we must review it in some detail. Two Social Security programs, Old Age Survivors and Disability Insurance (“OAS-DI”) and Supplemental Security Income (“SSI”), both provide for the payments of benefits to disabled persons. Under the Social Security Act (“the Act”), “disability” refers to the inability to do gainful work. A person is considered to be disabled only if “his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which" } ]

[ { "docid": "7307228", "title": "", "text": "litigation with the Secretary. The district court denied this petition for two reasons. First, the court found that “it would be a strange construction of the Equal Access to Justice Act to hold that a remand pursuant to legislative mandate could be said to make the plaintiff the ‘prevailing party’ as required by the EAJA.” Hendricks v. Bowen, No. 83-C-851-C, order at 2 (W.D.Wis. Dec. 22, 1986) [available on WESTLAW, 1986 WL 15782]. Second, the court noted that, under the EAJA, attorneys’ fees are awarded only when the government’s position was not substantially justified. Because the intervening legislative action precluded its consideration of the merits of the underlying case, the court concluded that it could not determine whether the government’s position failed under this standard. Nor could it determine, added the court, whether other circumstances existed which would make an award of attorneys’ fees unjust. Id. This appeal followed. II Discussion The EAJA provides in pertinent part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). Under the statute, Mr. Hendricks is entitled to attorneys’ fees if three prerequisites are met. First, Mr. Hendricks must be a prevailing party. Second, the position of the government must not have been substantially justified. Third, Mr. Hendricks’ case must not involve special circumstances that would make an award of fees unjust. See Gamber v. Bowen, 823 F.2d 242, 244 (8th Cir.1987). A. Substantially Justified We first consider whether the position of the Secretary in the underlying litigation was substantially justified. Mr. Hendricks argues that the Secretary’s position before the district court was not justified because" }, { "docid": "15993439", "title": "", "text": "OPINION OF THE COURT ALDISERT, Circuit Judge. In the course of proceedings to remove Appellee Hany Mahmoud Kiareldeen, an ethnic Palestinian and Israeli citizen, from the United States, the Immigration and Naturalization Service (“INS”) relied on classified evidence obtained by the FBI’s Joint Terrorism Task Force. This evidence suggested that Appellee was a member of a terrorist organization, was involved in the 1993 bombing of the World Trade Center and had made threats against Attorney General Janet Reno. After numerous administrative hearings, stays and appeals, the district court granted Kiareldeen a writ of habeas corpus, reasoning that the INS had not sufficiently proved its case against him to justify its actions during removal proceedings. The court later awarded him $110,743.06 in attorney fees under the Equal Access to Justice Act (“EAJA”), determining that the INS’s detention, and litigation in support of the detention, were not substantially justified. The Attorney General and the INS now appeal the grant of attorneys’ fees. We reverse the judgment. The EAJA provides that “a court shall award to a prevailing party other than the United States fees and other expenses ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Comm’r, INS v. Jean, 496 U.S. 154, 159-160, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). The government must meet this threshold twice. First, it must independently establish that the agency action giving rise to the litigation was substantially justified. Second, it must establish that its litigation positions were substantially justified. See id. See also Natural Resources Defense Council, Inc. v. EPA, 703 F.2d 700, 708 (3d Cir.1983). The principal argument advanced by the government is that its position during removal proceedings was substantially justified. We hold that it was, and reverse the district court’s grant of attorneys’ fees. Although the government originally took the position that the district court lacked jurisdiction to hear this case, that court assumed jurisdiction under 28 U.S.C. § 2241. We have jurisdiction to review the government’s appeal of the district court’s" }, { "docid": "8992606", "title": "", "text": "in an itemized statement from counsel, reflected work performed both in the district court and during the post-remand administrative proceedings. In response, the Secretary did not dispute the appropriateness of a fee award or the number of hours expended; he objected solely on the ground that the requested hourly rate was excessive. The district court concurred, noting that plaintiff’s submissions to the court were merely “boilerplate,” devoid of “novelty” or “individuality”; it concluded that a rate of $40 per hour was reasonable. Of the 6.75 hours claimed by plaintiff’s attorney with respect to the district court appeal, the court deemed 5.5 hours to have been reasonably expended. And, even though the government had not objected thereto, the court declined to award fees for the work performed before the agency. An award of $220 was therefore ordered. Plaintiff now contends that the court abused its discretion in (1) excluding from its award the time spent in the post-remand agency proceedings, and (2) cutting his requested hourly rate in half. II. The EAJA provides in relevant part as follows: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). Once a claimant has established “prevailing party” status, therefore, the government can defeat a fee award only by demonstrating that its position was “substantially justified” or that “special circumstances” make an award unjust. See, e.g., Commissioner, I.N.S. v. Jean, — U.S. -, 110 S.Ct. 2316, 2319, 110 L.Ed.2d 134 (1990); McDonald v. Secretary of Health and Human Services, 884 F.2d 1468, 1469-70 (1st Cir.1989); see also, e.g., Love v. Reilly, 924 F.2d 1492, 1495 (9th Cir.1991) (government has burden of proving substantial justification or special circumstances); De Allende v. Baker," }, { "docid": "1048688", "title": "", "text": "pending the ultimate decision on removal. The Court denied the request. That denial is the basis of this appeal. DISCUSSION The Equal Access to Justice Act, 28 U.S.C. § 2412, provides, in relevant part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (emphasis added). Three of these provisions are at issue in this case: first, whether the underlying-action is a “civil action” for the purposes of the EAJA; second, whether Vacchio is a “prevailing party” given the disposition of the case; and third, whether the position of the United States was substantially justified. The District Court decided all three issues in favor of the Government. In order to reverse, and grant Vacchio any award, we must decide all three of these issues in his favor. We will examine each of these questions in turn. A. “Civil Action” The District Court concluded that Vacchio’s habeas petition for a release from immigration detention did not qualify as a “civil action” under the EÁJA. As this question “presents only a legal issue of statutory interpretation,” we review the District Court’s holding de novo. Perry v. Dowling, 95 F.3d 231, 235 (2d Cir.1996). As noted, the EAJA applies to “any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action.” 28 U.S.C. § 2412(d)(1)(A). On its face, the term “any civil action” would seem to include habeas petitions, which ordinarily qualify as civil actions. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690, 121" }, { "docid": "18752228", "title": "", "text": "PER CURIAM. Albert Jackson appeals from a district court order denying his motion for an award of attorney’s fees under 28 U.S.C.A. § 2412 (West Supp.1986) (Equal Access to Justice Act (EAJA)). We affirm. I. BACKGROUND Jackson, who suffers from a seizure disorder, filed for disability benefits. His claim denied, Jackson sought judicial review of the Secretary’s denial. Following Jackson’s motion for summary judgment, which the Secretary did not oppose, the district court granted him disability benefits. Jackson’s attorney subsequently filed a petition for attorney’s fees, which the Secretary did not oppose. Although no specific statute was cited as authority for a fee award, the language of the petition paralleled the language contained in the EAJA. The district court entered two orders, one allowing fees under 42 U.S.C. § 406(b)(1) (1982), and the other disallowing fees under the EAJA. The district court denied Jackson’s attorney’s motion for a rehearing on the issue of attorney’s fees under the EAJA, and this appeal followed. II. DISCUSSION Under the EAJA, a prevailing party shall be awarded attorney’s fees if the government’s position is not substantially justified, unless special circumstances make the award unjust. 28 U.S.C.A. § 2412(d)(1)(A) (West Supp.1986). The Secretary bears the burden of proving that its position in the administrative and judicial proceedings below was substantially justified. Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir.1985) (in Eighth Circuit, “government’s position” includes positions at both prelitigation and litigation stages). Nevertheless, the district court’s judgment denying an award under the EAJA is not to be disturbed on appeal unless it constitutes an abuse of discretion. Id. Derickson Co. v. NLRB, 774 F.2d 229, 232 (8th Cir.1985). For the Secretary’s position to be substantially justified, the Secretary must show that the position was “clearly reasonable, well founded in law and fact, solid though not necessarily correct.” United States v. 1,378.65 Acres of Land, 794 F.2d 1313,1318 (8th Cir.1986) (footnote omitted). See Iowa Express Distributors, Inc. v. NLRB, 739 F.2d 1305, 1308 (8th Cir.) (government must show a reasonable basis in facts alleged and legal theory advanced and a reasonable connection between facts" }, { "docid": "963610", "title": "", "text": "(9th Cir.2006) (applying Huffman’s bifurcated inquiry in a case under the new version of the statute). We disagree with the taxpayers’ argument that the 1996 amendments somehow render Huffman’s reasoning inapplicable. Finally, we note that in another administrative law context, the Equal Access to Justice Act (“EAJA”) provides for attorneys’ fees awards when a government agency takes a position either before or during litigation that is not substantially justified. 28 U.S.C. § 2412. See, e.g., Thangaraja v. Gonzales, 428 F.3d 870, 873-74 (9th Cir.2005) (examining the Immigration and Naturalization’s position in agency proceedings as well as the immigration judge’s and Board of Immigration Appeals’ decisions in determining that attorneys’ fees were warranted under the EAJA); Lewis v. Barnhart, 281 F.3d 1081, 1083-84 (9th Cir.2002) (considering the finding of an administrative law judge before civil litigation commenced in determining whether the United States was substantially justified). The EAJA, first enacted in 1948, provides that “[ujnless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys ... to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action.” 28 U.S.C. § 2412(b). To recover, a party must demonstrate that the position of the United States is not substantially justified. Id. § 2412(d)(1)(A); § 2412(d)(1)(B). In 1985, Congress added language to the EAJA clarifying that “position of the United States” means “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” Pub.L. No. 99-80 § 2, 99 Stat. 183-(1985); see also id. § 2412(d)(2)(D). The EAJA also specifically excludes from its coverage any action that might be brought under 26 U.S.C. § 7430. 28 U.S.C. § 2412(e). Thus it is evident from the statutory language that Congress intended the fee-shifting inquiry under the tax statute to be different from the fee-shifting inquiry under the EAJA. The tax statute includes no" }, { "docid": "6033293", "title": "", "text": "the Phase II order arbitrary and capricious, and stated that the Commission had “much work to do on remand remedying the abundant inconsistencies in its order.” Id. at 234. LePage’s now petitions for an award of attorneys’ fees and expenses in the amount of $143,693.49, relating both to the litigation in this court and to the underlying administrative proceedings. LePage’s seeks the award under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (“EAJA”), which provides in pertinent part that attorneys’ fees and expenses shall be awarded to a “prevailing party ... unless the court finds that the position of the United States was substantially justified.” In its brief LePage’s argues that it was the “prevailing party” in this case and that the position of the PRC was not substantially justified. In its opposing brief the PRC agrees that LePage’s was the prevailing party but argues that the PRC was substantially justified in its position and consequently LePage’s is not entitled to any award of attorneys’ fees. The PRC further argues that even if this court finds its position to not be substantially justified, under the EAJA, LePage’s is not entitled to fees in the amount of $41,028.76 incurred in the underlying administrative proceedings. The PRC also states that if the court disagrees with these positions, the PRC does not contest the amount of fees requested. Discussion The Equal Access to Justice Act, 28 U.S.C. § 2412(d), states in pertinent part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). Our first task in deciding whether LePage’s meets the requirements of the EAJA is an easy one: we must determine whether fee petitioner LePage’s is" }, { "docid": "776153", "title": "", "text": "MEMORANDUM AND ORDER ANN ALDRICH, District Judge. The prevailing plaintiffs in this social security disability class action seek attorneys’ fees, costs and expenses from the Secretary of Health and Human Services (“Secretary”) under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Under the statute, fees must be awarded unless “the position of the United States” —the Secretary’s substantive position and the government’s litigating position—was “substantially justified.” Review of the recently-amended statute, the relevant Sixth Circuit case law and the lengthy history of this action compels the conclusion that the Secretary’s positions were unjustified and that an award under the EAJA is appropriate. I. The EAJA was enacted in 1980. Following enactment of the Equal Access to Justice Act Amendments (“EAJA Amendments), 28 U.S.C. § 2412(d)(1)(A) now provides: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort, including proceedings for judicial review of agency action) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. The newly-enacted 28 U.S.C. § 2412(d)(2)(D) provides: ... “position of the United States” means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings. And another new provision, § 206(b) of the EAJA, provides in part: Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code____ While § 206(b) is consistent with the Sixth Circuit’s view that EAJA fees were available" }, { "docid": "23679619", "title": "", "text": "of substantial evidence with a lack of substantial justification would result in an automatic award of attorney’s fees in all social security cases in which the government was unsuccessful on the merits: [A] reversal based on the ‘hazy contours of the “substantial evidence” rule’ does not necessarily mean that the position of the Government was not substantially justified_ [SJinee a social security appeal usually will be reversed only if the court finds the Secretary’s position to lack substantial evidence, the practical effect of viewing ‘substantial evidence’ and ‘substantially justified’ as synonymous would be that attorney fee awards would become automatic in virtually all successful social security appeals. This would be contrary to the clearly expressed intent of Congress that fees under the EAJA not be awarded automatically when the plaintiff prevails against the Government. Cohen v. Bowen, 837 F.2d at 585-86. We therefore adopt the majority rule that a lack of substantial evidence on the merits does .not necessarily mean that the government’s position was not substantially justified. We hold that the trial court erred as a matter of law in granting attorney’s fees based upon its conclusion that the government failed to present substantial evidence on the merits. The case is reversed and remanded to the district court for application of the EAJA consistent with the legal standard in this opinion. REVERSED and REMANDED. . The purpose underlying the Equal Access to Justice Act, codified at 28 U.S.C. § 2412, is to provide financial incentives for persons contesting unreasonable governmental action and to improve citizen access to the courts and administrative proceedings by providing an award to a prevailing party. Ewing v. Rodgers, 826 F.2d 967, 970 (10th Cir.1987). Section 2412(d)(1)(A) provides in pertinent part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. . Thus, the Supreme Court has laid to rest the argument that the term \"substantial justification\" requires" }, { "docid": "20336934", "title": "", "text": "as the party defendant.... 28 U.S.C. § 2679(d)(3). The Attorney General then withdrew representation for Horio. The district court held an evidentiary hearing, found that certification had been improperly denied, and ordered the United States substituted in as a party. Horio then sought an award of attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, for the litigation involved in securing the West-fall certification. The Equal Access to Justice Act states, in relevant part: (d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency actions, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The government claims: (1) that Horio was not a prevailing party within the meaning of the statute; (2) this was a case sounding in tort and so Horio was expressly precluded from gaining an award of fees; (3) the statute does not allow an award of fees for the Bivens action; and (4) no fees should be awarded because the government’s position was substantially justified. The district court rejected all these defenses and awarded $18,122 in fees to Horio. The government appeals from the fee award. Only the fee award, not the certification, is before us on appeal. We reverse. II. ANALYSIS We reverse the attorney’s fees award because the government was substantially justi fied in its position that Horio was not an employee. The Equal Access to Justice Act bars an award of fees if “the court finds that the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). If a reasonable person could be satisfied that Ho-rio was not a government employee, then the government was substantially justified in" }, { "docid": "12249171", "title": "", "text": "on one issue that we must first address, that is the applicable standard of review. “This Court has held that it will overturn an award of [EAJA] attorney’s fees when it appears that the district court abused its discretion in making the award.” Despite this “highly deferential review” of district court findings, a district court’s rulings on questions of law regarding EAJA fee awards require “close scrutiny”. A. Substantial Justification The EAJA in 28 U.S.C. § 2412(d)(1)(A) (Supp. Ill 1985) provides: [A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. The United States argues that its position was substantially justified within the meaning of section 2412(d)(1)(A). “The position of the United States for this purpose includes its underlying action as well as its litigating position.” The government must, therefore, show that the Corps’s permit renewal and its legal defense had “a reasonable basis both in law and in fact”. The government argues that the district court erroneously assumed that the position of the United States was not substantially justified because the government lost this case. The district court in its November 18, 1986, minute entry stated: “Consistent with the previous Opinion, Order and Judgment entered herein on April 23, 1986, ... this court finds as a matter of fact that the Defendant’s decision not to develop an environmental impact statement was not reasonable. Therefore, Plaintiffs’ are clearly entitled to an award of attorneys’ fees and costs under the Equal Access to Justice Act ...”. This Court recently stated in Griffon v. U.S. Dept. of Health and Human Services, that a finding of unreasonable governmental action is not “conclusive on the substantial justification issue, else in this class of case the substantial justification issue would always simply merge with the decision on the merits”. Clearly the" }, { "docid": "751042", "title": "", "text": "AMENDED ORDER ALLOWING ATTORNEYS’ FEES McMILLAN, District Judge. I Plaintiffs brought this class action suit against defendant in the fall of 1983, seeking injunctive relief for defendant’s wilful violation of the law. The North Carolina Department of Human Resources, Disability Determination Services, later intervened. On February 14, 1984, this Court ordered the defendant to stop acting in violation of specified “controlling decisions of the United States Court of Appeals for the Fourth Circuit of the United States.” 579 F.Supp. 985. Plaintiffs and intervenor have now moved for an attorneys’ fee award under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. II The EAJA, 28 U.S.C. § 2412(b), confers discretion on a court to find the United States liable for “fees and expenses to the same extent that any other party would be liable under the common law ____” The EAJA [further] provides that, unless otherwise provided by statute, a prevailing party in a case brought by or against the United States is entitled to fees, expenses and costs unless the United States establishes that its position in the litigation was “substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Intervenor is entitled to fees and expenses under 28 U.S.C. § 2412(b). The United States has acted in bad faith, vexatiously and wantonly in this action (see discussion page 1156, infra), and those actions justify an award of fees. See, e.g., Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). Plaintiffs are clearly prevailing parties in this litigation. Just as clearly, the EAJA may apply to actions of the Secretary for Health and Human Services. See Guthrie v. Schweiker, 718 F.2d 104 (4th Cir.1983). Therefore, the court must determine whether the government’s position was “substantially justified.” The burden is on the Secretary to show that her action met that standard. See, e.g., Phillips v. Heckler, 574 F.Supp. 870 (D.C.N.C.1983); Ulrich v. Schweiker, 548 F.Supp. 63 (D.Idaho 1982). The “substantially justified” standard is essentially one of reasonableness, Tyler v. Business Services, Inc. v. NLRB, 695" }, { "docid": "7579675", "title": "", "text": "or Judgment, Clerk’s Record 174. Subsequently, appellants filed an attorneys’ fees application with the district court, requesting fees and costs under EAJA, 28 U.S.C. § 2412(d), and ESA, 16 U.S.C. § 1540(g)(4). The district court denied the application under both statutes. II We review the district court’s decision to deny attorneys’ fees under EAJA for abuse of discretion. Oregon Environmental Council v. Kunzman, 817 F.2d 484, 496 (9th Cir.1987); Petition of Hill, 775 F.2d 1037, 1040 (9th Cir.1985). An abuse of discretion occurs if the district court based its decision on an erroneous legal conclusion or a clearly erroneous finding of fact. OEC v. Kunzman, 817 F.2d at 496. Interpretation of EAJA is a question of law reviewable de novo. Id. The relevant provisions of EAJA provide: [A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). In determining whether the government’s position was substantially justified “we look to the record of both the underlying government conduct at issue and the totality of circumstances present before and during litigation.” Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir.1987); see also OEC v. Kunzman, 817 F.2d at 498. EAJA defines the government’s “position” as both the posi tion of the government taken in the litigation and “the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D) (Supp. III 1985); see also League of Women Voters v. FCC, 798 F.2d 1255, 1258 (9th Cir.1986). By providing that courts “shall” award attorneys’ fees to prevailing parties, EAJA creates a presumption that fees will be awarded unless the government’s position was substantially justified. US. v. First National Bank of Circle, 732 F.2d 1444, 1447 (9th Cir.1984). “ ‘The test of whether or not a Government action" }, { "docid": "13822940", "title": "", "text": "held that although Foley was the “prevailing party,” the government’s position was substantially justified. II. EQUAL ACCESS TO JUSTICE ACT The Equal Access to Justice Act, 28 U.S.C. § 2412, enacted by Congress in 1980, provides for attorneys’ fees in suits by or against the United States under certain limited circumstances. The purpose of the EAJA is to diminish the deterrent effect of the expense involved in seeking review of, or defending against, unreasonable government action. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 5-6 (1980), U.S.Code Cong. & Admin.News 1980, p. 4953. In this case, Foley claims attorneys’ fees under 28 U.S.C. § 2412(d)(1)(A): [A] court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified * * *. There is no question that Foley was the “prevailing party” in this litigation. The only dispute in this appeal is whether the position of the United States- was substantially justified. The legislative history is helpful in interpreting the substantially justified standard. The House committee report on the EAJA states: The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and in fact, no award will be made.... The standard, however, should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. H.R.Rep. No. 1418, supra, at 10-11, U.S. Code Cong. & Admin.News 1980, pp. 4989-4990. Although the committee report is strong evidence that a reasonableness standard should be applied, we must also consider that the Senate" }, { "docid": "6524143", "title": "", "text": "MEMORANDUM CALDWELL, District Judge. I. Introduction Before the court is plaintiff’s counsel’s motion for attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). For the reasons discussed hereinafter, we have determined that a fee award is appropriate. II. Background Plaintiff in the current matter, which challenged recoupment procedures utilized in Title XVI SSI cases, has been represented by counsel from Central Pennsylvania Legal Services from the time this action was filed on October 27, 1982. On September 2, 1983, we filed a memorandum and order in which we struck down that two step procedure required of purportedly overpaid SSI beneficiaries before they could have a prerecoupment hearing. Our order directed that the Secretary implement procedures consistent with our conclusions. Most of the filings in this case subsequent to our September 2, 1983, decision have related to implementation matters, particularly cross-program recovery of overpayments. See n. 2 supra. III. The “Substantial Justification” Issue The attorney fee provision of the EAJA, 28 U.S.C. § 2412(d)(1)(A) mandates a fee award to a qualified “prevailing party” such as plaintiff “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” See Tressler v. Heckler, 748 F.2d 146 (3d Cir. 1984); Natural Resources Defense Council v. United States Environmental Protection Agency, 703 F.2d 700 (3d Cir.1983). Under 28 U.S.C. § 2412(d)(2)(A)(ii) attorney fees may not exceed an hourly rate of $75.00 per hour unless the court determines that higher amounts are warranted. In order that counsel fees be properly awarded under the EAJA, two conditions must be satisfied. First, one must be a “prevailing party.” Second, the court must examine the “substantial justification” issue and find that the government’s position was not substantially justified or that under the circumstances an award of attorney fees is unjust. In the present matter, no attack has occurred on plaintiff’s status as a prevailing party. Accordingly, the government having conceded that the first prong of the EAJA test has been met, we need examine only the “substantial justification” issue. We" }, { "docid": "1338432", "title": "", "text": "District Court for attorney fees under EAJA. The District Court granted the application, concluding that Jones was a prevailing party under EAJA and that the Government had not met its statutory burden of proving that its litigation position and its underlying action were “substantially justified.” We affirmed the District Court’s decision, holding that the literal language of EAJA made it clear that a pro se attorney is entitled to fees. See Jones I, 883 F.2d at 1034. Jones now applies for attorney fees incurred in the course of defending against the Government’s appeal of the fee award granted by the District Court. The Government contends that this court should not grant Jones’ request for fees for the appeal, because the appeal itself was reasonable and thus “substantially justified” within the terms of EAJA. II. Analysis A. “Substantially Justified ” Under EAJA Under EAJA, a prevailing party may recover attorney fees unless the “position of the United States” is “substantially justified.” EAJA states, in relevant part, that: [A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (Supp. V 1987). Prior to the 1985 amendments to EAJA, there was some doubt among the circuits about the meaning of “position of the United States,” see Rawlings v. Heckler, 725 F.2d 1192, 1195 (9th Cir.1984); however, it is now clear that this phrase comprehends both the Government’s underlying action and its litigation position. EAJA defines “position of the United States” to mean, “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D) (Supp. V 1987). The meaning of “substantially justified” in EAJA is now equally well" }, { "docid": "10947107", "title": "", "text": "ORDER BUA, District Judge. Before the Court is the plaintiff’s motion for an award of attorneys’ fees under the Equal Access to Justice Act (the EAJA), 28 U.S.C. § 2412. This motion arose out of an action remanded to the defendant Secretary of Health and Human Services (the Secretary) for further evidentiary proceedings regarding the plaintiffs application for widows’ disability insurance benefits pursuant to 42 U.S.C. § 402(e)(l)(B)(ii). For the reasons stated herein, the motion is denied. DISCUSSION The EAJA provides that “a court shall award to a prevailing party other than the United States” reasonable attorneys’ fees and expenses, in addition to costs, “incurred by that party in any civil action ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances made an award unjust.” 28 U.S.C. § 2412(d)(1)(A) (1982). Thus, to support a motion for attorneys’ fees, two important prerequisites must be set forth: (1) the court must determine that the claimant was a “prevailing party;” and, (2) that after the claimant has prevailed, the court must further find that the position of the government was not “substantially justified” and that no “special circumstances” make an award of fees unjust. 1. The Prevailing Party Requirement Plaintiff argues that the purpose of the EAJA in awarding attorneys’ fees is to correct inequities in civil actions between the United States and private litigants so that the parties would be on a more even footing. Plaintiff concludes that the remand in her case based on the AU’s failure to develop a complete record is a proper situation for awarding attorneys’ fees under the EAJA. Defendant argues that attorneys’ fees under the EAJA should be awarded only if the claimant is actually awarded benefits. Defendant concludes that attorneys’ fees for the remand in this case are inappropriate because the plaintiff did not prevail on the merits and has not yet been awarded benefits. The plaintiff relies on Gross v. Schweiker, 563 F.Supp. 260 (N.D.Ind.1983), which allowed an award" }, { "docid": "632392", "title": "", "text": "district court for fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A), for his time spent and costs accrued in litigating in the district court. The district court denied his application on September 13, 1983, finding that the EAJA does not authorize attorneys fees to pro se litigants. The court also decided that fees were inappropriate since the government’s position was substantially justified. The district court denied costs and expenses because they were not taxable under 28 U.S.C. § 1920 (1982). Merrell brought a separate appeal on the denial of fees and expenses. On January 27, 1984, another panel of this court affirmed the district court’s finding that the defendants were in violation of the NEPA, but remanded the case to allow the district court to expand its injunction to include both aerial and ground spraying over a larger territorial area. See Save Our ecoSystems v. Clark, 747 F.2d 1240 (9th Cir.1984). The court awarded attorneys fees to Merrell under the EAJA for his counsel’s fees on appeal, but specifically refrained from ruling on the district judge’s denial of fees to Merrell at the district court level since that issue was the subject of this separate appeal. We review the district court’s denial of fees and expenses under the EAJA for an abuse of discretion. The court’s interpretation of the EAJA, however, is subject to de novo review. Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1481 (9th Cir.1983) cert. denied, 469 U.S. 1028, 105 S.Ct. 446, 83 L.Ed.2d 372 (1984). The attorneys fee and expenses provision of the EAJA, 28 U.S.C. § 2412(d)(1)(A) provides, in part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or" }, { "docid": "4053498", "title": "", "text": "MEMORANDUM OPINION CHARLES R. RICHEY, District Judge. This matter is before the Court on plaintiffs’ Motion for Attorneys Fees under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412. For the reasons stated herein, the Court concludes that plaintiffs’ attorneys are entitled to an award under the Act and the Court will allow $20,907.65 of the $21,532.73 requested. ANALYSIS Resolving a motion for attorneys’ fees under the EAJA requires two steps of analysis. First, the Court must determine whether award is proper. Second, the Court must decide the amount to which the attorneys are entitled. As to entitlement to award, the EAJA provides: “[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action brought by or against the United States ... unless the court finds that the position of the United States was substantially justified .. .. ” 28 U.S.C. § 2412(d)(1)(A). Initially, it is clear both that plaintiffs are “parties” within the meaning of the EAJA, 28 U.S.C. § 2412(d)(2)(B), and that plaintiffs are the “prevailing parties” in this litigation, as the Act requires. 28 U.S.C. § 2412(d)(1)(A). Thus, the plaintiffs are entitled to attorneys fees unless this Court finds that defendants’ position in this litigation was “substantially justified.” “The test of whether or not a government action is substantially justified is essentially one of reasonableness.” H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 10 reprinted in 1980 U.S.Code Cong. & Admin.News 4984, 4989. And the burden of proof is on the government to justify its position. Id. The Court finds that defendants did not sustain this burden. This class action suit was brought on behalf of a group of migrant farmworkers to compel the ■ Department of Labor (“DOL”) to enforce certain of its regulations relating to temporary labor certification. Prior to 1980 DOL had consistently interpreted its regulations to require growers to increase the wage rate paid for piece work whenever the DOL increased the minimum wage rate — the adverse effect rate (“AER”). Any grower that did not comply" }, { "docid": "10971800", "title": "", "text": "1982, but not prior thereto. Subsequently, the plaintiff submitted a Letter Memorandum to the Appeals Council arguing that the .medical and vocational evidence supported an onset of disability on April 20,1979. The Appeals Council nevertheless affirmed the decision of the AU. Thereafter, plaintiff appealed to this court which reversed the decision of the Secretary and remanded with instructions to reinstate plaintiff’s benefits for a period beginning in August 1979 and continuing through April 1982. The instant petition for counsel fees followed. II. The Standard for Awarding Attorney’s Fees Against the Government under the Equal Access to Justice Act The Equal Access to Justice Act (“EAJA”) provides in pertinent part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The Third Circuit has on two recent occasions written extensively construing the EAJA. Dougherty v. Lehman, 711 F.2d 555 (3rd Cir.1983); Natural Resources Defense Council v. U.S. Environmental Protection Agency, 703 F.2d 700 (3rd Cir. 1983). Under the EAJA, in any civil action brought by or against the United States, a district court must award attorney’s fees and other costs to the prevailing party (other than the United States), unless the court finds that the government has carried its burden of showing that its position was “substantially justified,” or that special circumstances make an award unjust. Thus, in deciding whether to award fees under the EAJA the district court must determine which party prevailed, whether the government has carried its requisite burden, and accordingly, whether “substantial justification” for the government’s position has been demonstrated. Dougherty, supra at 560. The government has the burden of proving that “its action giving rise to the" } ]

[ { "docid": "3608443", "title": "", "text": "the invention reflects an inventive solution to any problem presented by combining the two.” 823 F.3d at 612 Claim 7 of the '610 patent is not patent-eligible under § 101. AFFIRMED-IN-PART AND REVERSED-IN-PART Costs Costs to defendants. . We refer to Trend Micro Incorporated and Trend Micro, Inc. (USA) together as a singular defendant \"Trend Micro.” . The jury awarded $9 million for infringement of the '142 patent and $8 million for infringement of the '610 patent. .While Trend Motion did not\" state under which rule it brought its motion, the district ■ court applied the Fed. R. Civ. P. 56 summary judgment standard, and the parties did not dispute the application of that standard. . The entry of final judgment ripened Syman-tec's cross-appeal. See Pause Tech. LLC v. TiVo Inc., 401 F.3d 1290, 1295 (Fed. Cir. 2005), . See., e.g., Bilski, 561 U.S. at 611, 130 S.Ct 3218 (claims directed to risk hedging); Alice, 134 S.Ct. at 2356 (claims directed to idea of intermediated settlement); In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) (claims directed to classifying a digital image and storing the image based on its classification); Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2016) (claims drawn to well-known idea of anonymous loan shopping); Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1333 (Fed. Cir. 2015) (claims directed to idea of determining a price using organizational and product group hierarchies); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348 (Fed. Cir. 2015) (claims directed to idea of retaining information in the navigation of online forms); OIP Techs., 788 F.3d at 1362-63 (claims directed to offer-based price optimization); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (claims directed to the idea of collecting data, recognizing certain data within the collected data set, and storing that recognized data in a memory); Ultramercial, Inc. v. Hulu LLC, 772 F.3d 709, 714-15 (Fed. Cir. 2014) (claims directed to displaying an advertisement in exchange" } ]

[ { "docid": "12133990", "title": "", "text": "recite an inventive concept under Alice step two. See, e.g., Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324-25 (Fed. Cir. 2016) (explaining that “generic computer components such as an ‘interface,’ ‘network,’ and ‘database’ ... do not satisfy the inventive concept requirement” (citations omitted)). [B] Whether analyzed individually or as an ordered combination, the claims recite conventional elements at a high level of generality and do not constitute an inventive concept. See In re TLI Commc’ns LLC v. Automotive, L.L.C., 823 F.3d 607, 614-15 (Fed. Cir. 2016) (cataloguing cases finding ineligibility under Alice step two where the claims recited “well-understood, routine, conventional activities previously known to the industry” (internal quotation marks, brackets, and citation omitted)). With-out more, the representative claims fail to recite an inventive concept under Alice step two. Because we conclude that the Asserted Claims of the Patents-in-Suit do not satisfy Alice’s two-step test, they are patent-ineligible under 35 U.S.C. § 101. Conclusion We have considered WVR’s remaining arguments and find them unpersuasive. Accordingly, the final judgment of the U.S. District Court for the Southern District of California is AFFIRMED . The Asserted Claims refer to the following eighty-one claims: claims 9-11, 13-15, 17-19, 22-24, 29, and 38 of U,S, Patent No. 8,065,-156 (\"the '156 patent”); claims 1, 5, 9, 13, 20, 22, 25, and 27-30 of U.S. Patent No. 8,290,-778; claims 1, 4, 6, 11, 17-19, 27, 30, and 32 of U.S. Patent No. 8,296,146; claims 1, 12, 26, 34-35, 38, 49-50, 60, and 62 of U.S. Patent No. 8,712,777; claims 1, 3-4, 6, 8, 12, 22, 37, 42, 48, 75, and 77 of U.S. Patent No. 8,719,-037; claims 1, 5, 12, 16, 22, 25-26, 32, 48, 54, 63, and 66 of U.S. Patent No. 8,719,038 (“the ’038 patent”); and claims 1, 10-11, 16, 23, 28-29, 34-35, 42, and 46-47 of U.S. Patent No. 8,781,839. Appellant’s Br. 2. We identify representative claims below. . Since the initiation of these appeals, claim 54 has been cancelled. See W. View Research, LLC v. Audi AG, Nos. 2016-1947, -1948, -1949, -1951, Docket No. 79 at 3-4" }, { "docid": "9256950", "title": "", "text": "and explaining that dependent claims are \"directed to improving 'the reliability and optimization of the cloud environment in which the application runs'-a context required by parent claim 1\") (emphasis added) But the Court has already concluded that the asserted independent claims are directed to an abstract idea: this was the Court's decision in the March 31, 2016 Order (C.A. No. 14-1192 D.I. 44; C.A. No. 14-1193 D.I. 52), and the Court has today denied reconsideration of that Order. Plaintiff does not point to any intrinsic evidence to show that any of the dependent claims, taken as a whole, teaches methods that are not abstract or that actually improve the functioning of computers. (See generally D.I. 132 at 22-26) Thus, Plaintiffs reliance on contrary expert opinion alone is insufficient to create a genuine issue of material fact. See Mortg. Grader, Inc. v. First Choice Loan Servs. Inc. , 811 F.3d 1314, 1325 (Fed. Cir. 2016) (\"The mere existence in the record of dueling expert testimony does not necessarily raise a genuine issue of material fact [in the context of a § 101 analysis].\"). In sum, Defendants have met their burden at step one. 2. Step Two At step two, the Court examines the claim limitations \"more microscopically,\" Elec. Power Grp. , 830 F.3d at 1354, \"both individually and as an ordered combination to determine whether the additional elements transform the nature of the claim into a patent-eligible application,\" Alice, 134 S.Ct. at 2355 (internal quotation marks omitted). The analysis at this step is \"a search for an inventive concept-i.e., an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.\" Alice, 134 S.Ct. at 2355 (internal quotations marks and brackets omitted). \"Mere recitation of concrete, tangible components is insufficient to confer patent eligibility to an otherwise abstract idea.\" In re TLI, 823 F.3d at 613. \"Rather, the components must involve more than performance of well-understood, routine, conventional activit[ies] previously known to the industry.\" Id. Defendants argue that the asserted dependent claims lack an inventive" }, { "docid": "9256954", "title": "", "text": "finds that the dependent claims, each viewed individually and as an ordered combination, lack an inventive concept. See Secured Mail Sols. LLC v. Universal Wilde, Inc. , 873 F.3d 905, 912 (Fed. Cir. 2017) (concluding that claims do not satisfy Alice's second step where \"claim language does not provide any specific showing of what is inventive about the [limitation in question] or about the technology used to generate and process it\"); see also Affinity Labs, 838 F.3d at 1263 (concluding that claims do not satisfy Alice's second step where the allegedly inventive concept was not the \"essential advance,\" was only described functionally, and where there was \"no further specification of a particular technology for\" accomplishing allegedly inventive concept). Taking the evidence (including the expert opinions) in the light most favorable to Plaintiff, a reasonable factfinder could only conclude, by clear and convincing evidence, that the challenged claims lack an inventive concept. No reasonable factfinder could find that anything Plaintiff contends constitutes the \"inventive concept\" is actually \"captured by the claims.\" (See generally Tr. at 58-59) (Plaintiff's counsel agreeing expert opinion is not material if claims do not capture what expert contends is non-routine about them); see also Two-Way Media, 874 F.3d at 1338 (distinguishing between \"the claim -as opposed to something purportedly described in the specification,\" in analyzing inventive concept). Hence, there is no genuine dispute of material fact and summary judgment is warranted. See generally Berkheimer, 881 F.3d at 1369 (\"The improvements in the specifications, to the extent they are captured ill the claims, [may) create a factual dispute regarding whether the invention describes well-understood, routine, and conventional activities ....\") (emphasis added). In sum, because the claims are directed to an abstract idea and nothing in the claims add an inventive concept, the claims are not patent eligible under § 101. IV. CONCLUSION The asserted claims of the '974 patent are not patent eligible under § 101. Hence, the Court will grant Defendants' renewed motion for summary judgment and will deny Plaintiff's renewed motion to reconsider the Court's previous Order invalidating certain asserted claims. An appropriate Order follows. ORDER" }, { "docid": "1209693", "title": "", "text": "F.2d 635, 638 (6th Cir.1993)(citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir.1987)). Put another way, “the purpose of a motion under Federal Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; the motion is not a procedure for resolving a contest between the parties about the facts or the substantive merits of the plaintiffs case.” 5B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1856 (3d ed.2004). The test for dismissal under Fed. R.Civ.P. 12(b)(6) is a stringent one. “[A] complaint should not be dismissed for failure to state a claim on which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In addition, for purposes of the motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101 (6th Cir.1995), cert. denied, 516 U.S. 1158, 116 S.Ct. 1041, 134 L.Ed.2d 189 (1996). When reviewing the complaint, the Court “need not accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Put another way, bare assertions of legal conclusions are not sufficient. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir.1996). It is only well-pleaded facts which are construed liberally in favor of the party opposing the motion to dismiss. Id.; see also Wright & Miller, supra, § 1357. MOTION TO DISMISS BY ABX," }, { "docid": "20295699", "title": "", "text": "Insurance Company. (Id. at 7.) Further, Plaintiffs contend that standing is not lacking merely because Plaintiffs are not in contractual privity with GEICO Corporation because not all claims are premised on contractual privity. (Id.) B. Legal Standard 1. Rule 12(b)(1) Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Motions brought under Rule 12(b)(1) may present either a facial challenge or a factual challenge to the Court’s subject matter jurisdiction. Gould Elecs. Inc. v. U.S., 220 F.3d 169, 176 (3d Cir.2000) (citing Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). If the motion presents a factual attack, the Court may consider evidence outside the pleadings, id., including affidavits, depositions, and testimony, to resolve factual issues bearing on jurisdiction. Gotha v. U.S., 115 F.3d 176, 179 (3d Cir. 1997). Moreover, in reviewing a factual challenge to the court’s subject matter jurisdiction, the presumption of truthfulness does not attach to the allegations of the complaint. Mortensen, 549 F.2d at 891. If the motion presents a facial attack, the Court may only consider the allegations of the complaint, and documents referenced therein, in the light most favorable to the plaintiff. Gould Elecs., 220 F.3d at 176. 2. Rule 12(b)(6) Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move for dismissal based on a plaintiff’s “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in a complaint as true and view them in the light most favorable to the plaintiff. See Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Assuming the factual allegations are true, even if doubtful in fact, the “factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp." }, { "docid": "9108515", "title": "", "text": "12(b)(6) motions de novo, accepting as true the complaint's factual allegations and construing them in the light most favorable to the plaintiff. Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention , 623 F.3d 1371, 1379 (11th Cir. 2010). We have held that patent eligibility can be determined at the Rule 12(b)(6) stage. See, e.g. , Genetic Techs. Ltd. v. Merial L.L.C. , 818 F.3d 1369, 1373 (Fed. Cir. 2016) ; Content Extraction , 776 F.3d at 1346, 1351. This is true only when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law. Indeed, we have explained that \"plausible factual allegations may preclude dismissing a case under § 101 where, for example, 'nothing on th[e] record ... refutes those allegations as a matter of law or justifies dismissal under Rule 12(b)(6).' \" FairWarning IP, LLC v. Iatric Sys., Inc. , 839 F.3d 1089, 1097 (Fed. Cir. 2016) (quoting BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC , 827 F.3d 1341, 1352 (Fed. Cir. 2016) ). If there are claim construction disputes at the Rule 12(b)(6) stage, we have held that either the court must proceed by adopting the non-moving party's constructions, BASCOM , 827 F.3d at 1352 ; Content Extraction , 776 F.3d at 1349, or the court must resolve the disputes to whatever extent is needed to conduct the § 101 analysis, which may well be less than a full, formal claim construction. Genetic Techs., 818 F.3d at 1373. This is not a case where patent ineligibility was properly adjudicated with finality at the Rule 12(b)(6) stage. The district court erred to the extent it determined that claim 1 of the '615 patent is ineligible because it is not directed to a tangible embodiment. The district court granted this Rule 12(b)(6) motion without claim construction. We have some doubt about the propriety of doing so in this case, but need not reach that issue because it did err when it denied leave to amend without claim construction and in the face of" }, { "docid": "3579588", "title": "", "text": "in services such as dial-a-prayer and dial-arjoke, which were, available long before the invention of cellular telephones or the Internet. While- Affinity criticizes the magistrate’s making factual findings on a motion for judgment on the pleadings, the practice of taking note of fundamental economic concepts and technological developments in this context is well supported by our precedents. See, e.g., OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63 (Fed. Cir. 2015) (affirming district court’s finding on a motion to dismiss that “offer-based price optimization” is a fundamental economic concept and that the claimed computer-based implementation of that idea is routine and conventional); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (affirming district court’s finding on a motion to dismiss that the claims were directed to the well-known abstract idea of “1) collecting data, 2) recognizing certain data within the collected data set, and 3) storing that recognized data in a memory”). Affinity also objects to the magistrate judge’s conclusion that the claims merely set forth “routine and generic processing and storing capabilities of computers generally.” Yet the claim terms to which the magistrate judge referred, such as a “network based media management system” and a “graphical user interface,” are simply generic descriptions of well-known computer components. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d at 611 (physical components such as a telephone and a server “merely provide a generic environment in which to carry out the abstract idea”); Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324-25 (Fed. Cir. 2016) (claims reciting an “interface,” “network,” and “database” are directed to an abstract idea). Affinity makes no claim that it invented any of those components or their basic functions, nor does it suggest that those components, at that level of generality, were unknown in the art as of the priority date of the ’085 patent. In an effort to show that claim 14 is not directed to an abstract idea, Affinity focus-és in particular on the recitation of a “customized user interface” in that" }, { "docid": "5538551", "title": "", "text": "banc) (“Obviousness is a question of law based on underlying facts.”). We have previously stated that “[t]he § 101 inquiry ‘may contain underlying factual issues.’” Mortg. Grader, 811 F.3d at 1325 (emphasis in original) (quoting Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1341 (Fed. Cir. 2013)). And the Supreme Court recognized that in making the § 101 determination, the inquiry “might sometimes overlap” with other fact-intensive inquiries like novelty under § 102. Mayo, 566 U.S. at 90, 132 S.Ct. 1289. As our cases demonstrate, not every § 101 determination contains genuine disputes over the underlying facts material to the § 101 inquiry. See, e.g., Content Extraction, 776 F.3d at 1349 (patent owner conceded the argued inventive concept “was a routine function of scanning technology at the time the claims were filed”); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (patent owner argued an “interactive interface” is “a specific application of the abstract idea that provides an inventive concept” and did not dispute that the computer interface was generic). Whether a claim recites patent eligible subject matter is a question of law which -may contain disputes over underlying facts. Patent eligibility has in many cases been resolved on motions to dismiss or summary judgment. Nothing in this decision should be viewed as casting doubt on the propriety of those cases. When there is ■no genuine issue of material fact regarding whether the claim element or claimed combination is well-understood, routine, conventional to a skilled artisan in the relevant 'field, this issue can be decided on summary judgment as a matter of law. Here, the district court concluded that the claims do not contain an inventive concept under Alice step two because they describe “steps that employ only ‘well-understood, routine, and conventional’ computer functions” and are claimed “at a relatively high level of generality.” Berkheimer, 224 F.Supp.3d at 647-48 (quoting Content Extraction, 776 F.3d at 1348). Mr, Berkheimer argues portions of the specification referring to reducing redundancy and enabling one-to-many editing contradict the district court’s finding that the claims describe" }, { "docid": "23086030", "title": "", "text": "“humanly comprehensible” amount of information useful for users, Reply Br. at 6; Electric Power Group Br. at 14-15 — by itself does not transform the otherwise-abstract processes of information collection and analysis. Inquiry therefore must turn to any requirements for how the desired result is achieved. But in this case the claims’ invocation of computers, networks, and displays does not transform the claimed subject matter into patent-eligible applications. The claims at issue do not require any nonconventional computer, network, or display components, or even a “non-eonventional and non-generic arrangement of known, conventional pieces,” but merely call for performance of the claimed information collection, analysis, and display functions “on a set of generic computer components” and display devices. Baseom, 827 F.3d at 1349-52, 2016 WL 3514158, at *6-7. Nothing in the claims, understood in light of the specification, requires anything other than off-the-shelf, conventional computer, network, and display technology for gathering, sending, and presenting the desired information. That is so even as to the claim requirement of “displaying concurrent visualization” of two or more types of information, ’710 patent, col. 31, line 37, even if understood to require time-synchronized display: nothing in the patent contains any suggestion that the displays needed for that purpose are anything but readily available. We have repeatedly held that such invocations of computers and networks that are not even arguably inventive are “insufficient to pass the test of an inventive concept in the application” of an abstract idea, buySAFE, 765 F.3d at 1353, 1355; see, e.g., Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324-25 (Fed. Cir. 2016); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015); Internet Patents, 790 F.3d at 1348-49; Content Extraction, 776 F.3d at 1347-48. Two of our decisions that rejected § 101 challenges are materially different from this case. The claims at issue here do not require an arguably inventive device or technique for displaying information, unlike the claims at issue in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) (at JMOL stage finding inventive" }, { "docid": "9275824", "title": "", "text": "components are not sufficient to transform abstract claims into patent-eligible subject matter. Voter Verified's argument that these steps are not only performed by generic computer components, but also performed by a voter, was addressed under step one when they were determined to be an abstract idea. Because all of the remaining claims only recite different variations of the same abstract idea being performed with other generic computer components, we therefore conclude that the district court properly determined that the claims of the '449 patent are invalid under § 101. We have considered Voter Verified's remaining arguments, but find them unpersuasive. CONCLUSION For the foregoing reasons, we affirm the district court's dismissal of the complaint under Rule 12(b)(6) because all of the remaining claims of the '449 patent are invalid under § 101. AFFIRMED The parties do not dispute that this means Election Systems was a party to the prior litigation. See, e.g. , Alice , 134 S.Ct. at 2359-60 (holding that \"implement[ing] the abstract idea ... on a generic computer\" was not sufficient \"to transform an abstract idea into a patent-eligible invention\"); Intellectual Ventures I LLC v. Capital One Fin. Corp. , 850 F.3d 1332, 1341-42 (Fed. Cir. 2017) (holding that \"using generic computer components and conventional computer data processing activities\" was not sufficient to find an \"inventive concept\"); In re TLI Commc'ns LLC Patent Litig. , 823 F.3d 607, 613-14 (Fed. Cir. 2016) (\"These steps fall squarely within our precedent finding generic computer components insufficient to add an inventive concept to an otherwise abstract idea.\"); Mortg. Grader, Inc. v. First Choice Loan Servs. Inc. , 811 F.3d 1314, 1324-25 (Fed. Cir. 2016) (holding that generic computer components such as an \"interface,\" \"network,\" and \"database\" fail to satisfy the \"inventive concept requirement\" (internal quotation marks omitted) ); Content Extraction , 776 F.3d at 1347-48 (\"There is no 'inventive concept' in [Content Extraction's] use of a generic scanner and computer to perform well-understood, routine, and conventional activities commonly used in industry.\")." }, { "docid": "9256955", "title": "", "text": "(Plaintiff's counsel agreeing expert opinion is not material if claims do not capture what expert contends is non-routine about them); see also Two-Way Media, 874 F.3d at 1338 (distinguishing between \"the claim -as opposed to something purportedly described in the specification,\" in analyzing inventive concept). Hence, there is no genuine dispute of material fact and summary judgment is warranted. See generally Berkheimer, 881 F.3d at 1369 (\"The improvements in the specifications, to the extent they are captured ill the claims, [may) create a factual dispute regarding whether the invention describes well-understood, routine, and conventional activities ....\") (emphasis added). In sum, because the claims are directed to an abstract idea and nothing in the claims add an inventive concept, the claims are not patent eligible under § 101. IV. CONCLUSION The asserted claims of the '974 patent are not patent eligible under § 101. Hence, the Court will grant Defendants' renewed motion for summary judgment and will deny Plaintiff's renewed motion to reconsider the Court's previous Order invalidating certain asserted claims. An appropriate Order follows. ORDER At Wilmington, this 18th day of June, 2018: For the reasons set forth in the Memorandum Opinion issued this date, IT IS HEREBY ORDERED that: 1. Defendants' Renewed Motion for Summary Judgment of Infringement Under 35 U.S.C § 101 (D.I. 124) is GRANTED. 2. Plaintiffs Motion for Reconsideration of Plaintiff s Renewed Motion for the Court to Reconsider the March 31, 2016 Order in Light of Subsequently-Issued Authority (D.I. 131) is DENIED. IT IS FURTHER ORDERED that the parties shall meet and confer and, no later than June 22, 2018, submit a joint status report providing the Court with their position(s) as to how this case should now proceed. Unless otherwise noted, all references to the docket index (\"D.I.\") are to C.A. No. 14-353. The Court will be issuing a separate opinion resolving the parties' claim construction disputes. Plaintiff also cites Rule 60(b)(5), which authorizes relief from a final judgment, order, or proceeding where \"applying it prospectively is no longer equitable.\" (D.I. 132 at 12) Plaintiff does not provide any substantive arguments on this issue." }, { "docid": "18946006", "title": "", "text": "This added little if anything to the '694 patent’s specification, which observed that “[tjhere are newspaper or Internet referral sites which publish interest rates for one or more lenders.” '694 patent col. 1, 11. 38-39. Indeed, as Mortgage Grader’s expert stated, neither of Appellees’ experts “referenee[d] the asserted claims, but instead merely explained] the existence of mortgage rate tables published in newspapers during the 1980s and 1990s.” J.A. 1470. Mortgage Grader’s expert, Jeffrey Le-bowitz, opined that the patents-in-suit solved the problem of information asymmetry between borrowers and lenders, which had previously permitted lenders to “steer” borrowers to predatory loans. But that assertion about problem solving does not by its terms identify claimed process steps. In any event, the claims do not actually contain a “conflict-free requirement.” See Mortgage Grader II, 89 F.Supp.3d at 1063. Instead, the claims expressly encompass so-called “independent” third-parties who, in addition to determining a borrower’s credit grading, may be “full time employee[s] of an entity providing the desired financial services” and may “receive! ] a percentage commission from an affiliated company based on the loans funded through the program.” '694 patent col. 10, 1.51 — col. 11, 1.5; '728 patent col. 9, 11.41-61. Plainly, conflicts-of-interest and predatory lending are still possible when practicing the claims. Mr. Lebowitz’s other opinion is that the patents-in-suit require use of a computer. But given the intrinsic evidence, and Alice’s clarification that use of a generic computer to implement a “fundamental economic practice” cannot provide an inventive concept sufficient to save claims from patent ineligibility, 134 S.Ct. at 2356-57, this opinion does not create a genuine dispute of material fact. In sum, no reasonable factfinder could find based on the expert reports that the asserted claims are directed to patent-eligible subject matter. Conclusion For the foregoing reasons, the district court did not abuse its discretion in denying Mortgage Grader’s motion to strike Appellees’ § 101 defense. Nor did the district court err in granting summary judgment to Appellees on that defense. Instead, the district court correctly determined that the asserted claims are directed to patent-ineligible subject matter. AFFIRMED. No costs. ." }, { "docid": "9256933", "title": "", "text": "claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact. Any fact, such as this one, that is pertinent to the invalidity conclusion must be proven by clear and convincing evidence.\" Berkheimer, 881 F.3d at 1368 ; see also Aatrix Software, Inc. v. Green Shades Software, Inc. , 882 F.3d 1121, 1128 (Fed. Cir. 2018) (\"While the ultimate determination of eligibility under § 101 is a question of law, like many legal questions, there can be subsidiary fact questions which must be resolved en route to the ultimate legal determination.\"); Automated Tracking Sols., LLC v. Coca-Cola Co. , 723 Fed. Appx. 989, 995 (Fed. Cir. 2018) (\"We have held that 'whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact.' \") (quoting Berkheimer, 881 F.3d at 1368 ). \"Whether a particular technology is well-understood routine, and conventional goes beyond what was simply known in the prior art. The mere fact that something is disclosed in a piece of prior art, for example, does not mean it was well-understood, routine, and conventional.\" Berkheimer, 881 F.3d at 1369. Still, \"[w]hen there is no genuine issue of material fact regarding whether the claim element or claimed combination is well-understood, routine, [and] conventional to a skilled artisan in the relevant field, this issue can be decided on summary judgment as a matter of law.\" Id. ; see also Intellectual Ventures I LLC v. Symantec Corp. , 725 Fed.Appx. 976, 978 n.1 (Fed. Cir. 2018) (affirming grant of summary judgment of patent ineligibility and stating Berkheimer \"does not compel a different conclusion\"). III. DISCUSSION A. Reconsideration of March 31, 2016 Order Regarding Ineligibility of Claims 1, 12, 13, 24, and 35 Plaintiff moves for reconsideration of the Court's Order invalidating all of the asserted independent claims-1, 13, 24, and 35-and claim 12, a dependent claim. (C.A. No. 14-1193 D.I. 52) Plaintiffs motion arises under Federal Rule of Civil Procedure 60(b)(6), which permits relief from an" }, { "docid": "12133989", "title": "", "text": "inventive concept that transforms the abstract idea into a patent-eligible invention. The subject patents’ specification recites “many different arrangements for the disposition of various components within the system ..., all of which are encompassed within the scope of the present invention.” ’038 patent col. 9 11. 29-34; 156 patent col. 7 1. 64-col. 8 1. 2 (same). Yet, the components involved in the “many different arrangements” are generic. See, e.g., ’038 patent col. 7 11. 17-20 (“the input device 102 of the present embodiment is a touch-sensitive keypad and/or display screen of the type well known in the electrical arts”); 156 patent col. 5 11. 52-55 (same); see also ’038 patent col. 7 11. 37-38 (explaining that “[m]yriad speech recognition systems and algorithms are available”); 156 patent col. 6 11. 5-7 (same). The content of the claims relevant here confirm what the specification recites. See ’038 patent col. 32 11. 56-64 (claim 63); 156 patent col. 27 11. 14-17 (claim 29). If a patent uses generic computer components to implement an invention, it fails to recite an inventive concept under Alice step two. See, e.g., Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324-25 (Fed. Cir. 2016) (explaining that “generic computer components such as an ‘interface,’ ‘network,’ and ‘database’ ... do not satisfy the inventive concept requirement” (citations omitted)). [B] Whether analyzed individually or as an ordered combination, the claims recite conventional elements at a high level of generality and do not constitute an inventive concept. See In re TLI Commc’ns LLC v. Automotive, L.L.C., 823 F.3d 607, 614-15 (Fed. Cir. 2016) (cataloguing cases finding ineligibility under Alice step two where the claims recited “well-understood, routine, conventional activities previously known to the industry” (internal quotation marks, brackets, and citation omitted)). With-out more, the representative claims fail to recite an inventive concept under Alice step two. Because we conclude that the Asserted Claims of the Patents-in-Suit do not satisfy Alice’s two-step test, they are patent-ineligible under 35 U.S.C. § 101. Conclusion We have considered WVR’s remaining arguments and find them unpersuasive. Accordingly, the final judgment of the" }, { "docid": "5579668", "title": "", "text": "system,” “a hash identifier,” and “data”). The ’816 and ’390 patents similarly recite the use of a “processor” and “memory.” ’816 patent col. 25 11.12-38 (claim 1); ’390 patent col. 24 1. 42-col. 25 1. 5 (claim 1); col. 26 11. 29-63 (claim 31). When claims like the Asserted Claims are “directed to an abstract idea” and “merely requir[e] generic computer implementation,” they “do[ ] not move into section 101 eligibility territory.” buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1354 (Fed. Cir. 2014) (internal quotation marks and citation omitted); see Capital One Fin., 850 F.3d at 1341 (describing a “processor” as a generic computer component); Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324-25 (Fed. Cir. 2016) (discussing the same with respect to an “interface”); Content Extraction, 776 F.3d at 1347-48 (discussing the same with respect to “data” and “memory”). Neither Diehr nor DDR Holdings demonstrate that the Asserted Claims contain an inventive concept. In Diehr, the Supreme Court held that a computer-implemented process for curing rubber was patent eligible because, even though it employed a well-known mathematical equation, it used the equation in a process to solve a technological problem in conventional industry practice. See 450 U.S. at 185-93, 101 S.Ct. 1048. Diehr does not apply when, as here, the claims at issue use generic computer components “in which to carry out the abstract idea.” LendingTree, LLC v. Zillow, Inc., 656 Fed.Appx. 991, 997 (Fed. Cir. 2016) (footnote omitted). In DDR Holdings, we found claims patent eligible under § 101 because, inter alia, they had no pre-Inter-net analog. See 773 F.3d at 1257-59. DDR Holdings does not apply when, as here, the asserted claims do not “attempt to solve a challenge particular to the Internet.” In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016) (internal quotation marks and citation omitted). We agree with the District Court that the Asserted Claims recite the abstract idea of collecting financial data using generic computer components. The Asserted Claims therefore offer no inventive concept that transforms them into patent-eligible subject matter. D. SSI’s" }, { "docid": "21683697", "title": "", "text": "Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2016) (holding that claims are abstract where they “recite nothing more than the collection of information to generate a ‘credit grading’ and to facilitate anonymous loan shopping”); Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333-34 (Fed. Cir. 2012) (holding that a “computer-aided” method for “processing information through a clearinghouse” for car loan applications is patent ineligible). B At step two of the Alice framework, the Board concluded that the claims do not recite an inventive concept. Again, we agree. The use and arrangement of conventional and generic computer components recited in the claims — such as a database, user terminal, and server — do not transform the claim, as a whole, into “significantly more” than a claim to the abstract idea itself. Alice, 134 S.Ct. at 2360; see also In re TLI Commc’ns, 823 F.3d at 615 (holding that “vague, functional descriptions of server components are insufficient to transform the abstract idea into a patent-eligible invention”); Mortg. Grader, 811 F.3d at 1324 (holding no inventive concept where “the claims ‘add’ only generic computer components such as an ‘inter-face,’ ‘network,’ and ‘database’ ”). ‘We have repeatedly held that such invocations of computers and networks that are not even arguably inventive are ‘insufficient to pass the test of an inventive concept in the application’ of an abstract idea.” Elec. Power Grp., 830 F.3d at 1355 (quoting buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1353 (Fed. Cir. 2014)). CAC asserts that “[p]rior to the ’807 [p]atent, because computers were unable to perform” the claimed process, “automobile financing was manual, iterative, and laborious.” CAC Opening Br. 9. Indeed, the specification explains that the iterative process, described above at step one, “of negotiating financing, especially with high risk borrowers, is labor intensive, difficult, and inefficient.” ’807 patent, col. 2 11. 51-53. CAC suggests that the invention solves this problem because it “provides software that allows computers to supplant and enhance” the existing series of manual steps of securing financing — “a task they were previously not configured to perform.”" }, { "docid": "9108514", "title": "", "text": "1, 13, and 17 are substantively the same as '615 patent claim 2 and similarly directed to abstract ideas without inventive concepts. Aatrix moved to modify and vacate the judgment, for reconsideration, and for leave to amend the complaint. It sought reconsideration of the district court's tangible embodiment analysis and leave to file a second amended complaint that it argued supplied additional allegations and evidence that would have precluded a dismissal under § 101 at the Rule 12(b)(6) stage. The district court denied these motions, stating that \"[u]pon consideration of the filings and the relevant case law, the [district court] sees no reason to reconsider its prior determination. Accordingly, [Aatrix's] motions will be denied.\" J.A. 34. Aatrix timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a). DISCUSSION I. \"We review a district court's dismissal for failure to state a claim under the law of the regional circuit.\" Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass'n , 776 F.3d 1343, 1346 (Fed. Cir. 2014). The Eleventh Circuit reviews the grant of Rule 12(b)(6) motions de novo, accepting as true the complaint's factual allegations and construing them in the light most favorable to the plaintiff. Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention , 623 F.3d 1371, 1379 (11th Cir. 2010). We have held that patent eligibility can be determined at the Rule 12(b)(6) stage. See, e.g. , Genetic Techs. Ltd. v. Merial L.L.C. , 818 F.3d 1369, 1373 (Fed. Cir. 2016) ; Content Extraction , 776 F.3d at 1346, 1351. This is true only when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law. Indeed, we have explained that \"plausible factual allegations may preclude dismissing a case under § 101 where, for example, 'nothing on th[e] record ... refutes those allegations as a matter of law or justifies dismissal under Rule 12(b)(6).' \" FairWarning IP, LLC v. Iatric Sys., Inc. , 839 F.3d 1089, 1097 (Fed. Cir. 2016) (quoting BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC , 827" }, { "docid": "9108524", "title": "", "text": "makes the computer process forms more efficiently. J.A. 429 ¶ 39. These allegations suggest that the claimed invention is directed to an improvement in the computer technology itself and not directed to generic components performing conventional activities. We have repeatedly held that inventions which are directed to improvements in the functioning and operation of the computer are patent eligible. See, e.g. , Visual Memory LLC v. NVIDIA Corp. , 867 F.3d 1253, 1258-59 (Fed. Cir. 2017) ; Amdocs (Israel) Ltd. v. Openet Telecom, Inc. , 841 F.3d 1288, 1300-02 (Fed. Cir. 2016) ; Enfish, LLC v. Microsoft Corp. , 822 F.3d 1327, 1336 (Fed. Cir. 2016) ; see also DDR Holdings, LLC v. Hotels.com, L.P. , 773 F.3d 1245, 1257 (Fed. Cir. 2014). Viewed in favor of Aatrix, as the district court must at the Rule 12(b)(6) stage, the complaint alleges that the claimed combination improves the functioning and operation of the computer itself. These allegations, if accepted as true, contradict the district court's conclusion that the claimed combination was conventional or routine. J.A. 26. Therefore, it was an abuse of discretion for the district court to deny leave to amend. While the ultimate determination of eligibility under § 101 is a question of law, like many legal questions, there can be subsidiary fact questions which must be resolved en route to the ultimate legal determination. Relevant to this case, the second step of the Alice / Mayo test requires examining \"the elements of the claim to determine whether it contains an 'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application.\" Alice , 134 S.Ct. at 2357 (quoting Mayo , 566 U.S. at 72, 79, 132 S.Ct. 1289 ). If the elements involve \"well-understood, routine, [and] conventional activity previously engaged in by researchers in the field,\" Mayo , 566 U.S. at 73, 132 S.Ct. 1289, they do not constitute an \"inventive concept.\" We have explained that the second step of the Alice / Mayo test is satisfied when the claim limitations \"involve more than performance of 'well-understood, routine, [and] conventional activities previously known to the industry.'" }, { "docid": "9493497", "title": "", "text": "be treated under the standards applicable to Rule 12(b)(6) motions. In that connection, the Supreme Court stated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957): In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id. at 45-46, 78 S.Ct. at 101-102. Accord, Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Angelastro v. Prudential-Bache Securities, 764 F.2d 939 (3d Cir.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1986). Indeed, the Supreme Court has stated that a Rule 12 motion should not succeed unless the complaint is found to be “wholly frivolous.” Radovich v. National Football League, 352 U.S. 445, 453, 77 S.Ct. 390, 395, 1 L.Ed.2d 456 (1957). As articulated in this Circuit, the standard to be applied in a motion under Fed.R.Civ.P. 12(b)(6) is whether, after construing the pleading in the light most favorable to the plaintiff and resolving every doubt in favor of the plaintiff, the pleading states any valid claim for relief. Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977). With respect to at least two aspects of this matter — the allegations concerning plaintiffs knowledge of the excessive markups and the related issue of statute of limitations accrual — submissions in addition to the pleadings have been presented. To this limited extent defendants’ Rule 12(b)(6) motion will be treated as a motion for summary judgment under Rule 56. To prevail on a motion for summary judgment, the moving party must establish “there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The district court’s task is to determine whether disputed issues of fact exist, but the court cannot resolve factual disputes in a motion for summary judgment." }, { "docid": "5538540", "title": "", "text": "Accordingly, we affirm the district court’s determination that claims 10-19 are invalid as indefinite. II. Patent Eligibility In patent appeals, we apply the law of the regional circuit, here the Seventh Circuit, to issues not unique to patent law. AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1295 (Fed. Cir. 2014). The Seventh Circuit reviews a grant of summary judgment de novo, drawing all reasonable inferences -in the light most favorable to the non-movant. Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011). Summary judgment is appropriaté when, “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). Patent eligibility under 35 U.S.C. § 101 is ultimately an issue of law we review de novo. Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1338 (Fed. Cir. 2017). The patent eligibility inquiry may contain underlying issues of' fact. Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016). First, we address whether Mr. Berkheimer waived his ability to argue that the dependent claims are separately patent eligible. Courts may treat a claim as representative in certain situations, such as if the patentee does not present any meaningful argument for the distinctive significance of any claim limitations not found in the representative claim or if the parties agree to treat a claim as representative. Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1352 (Fed. Cir. 2016); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1316 &. n.9 (Fed. Cir. 2016). Because Mr. Berkheimer maintained that limitations included in dependent claims 4-7 bear on patent eligibility and never agreed to make claim 1 representative, we hold that arguments going specifically to claims 4-7 are properly preserved on appeal. Mr. Berkheimer never agreed to make claim 1 representative. In his opposition brief to HP’s motion for summary judgment, he argued that claim 1 is not representative of the limitations found in the dependent claims. J.A. 1280. In" } ]

[ { "docid": "22851808", "title": "", "text": "fact exists when there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). The moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. See Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. It must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. III. LEGAL STANDARDS A. The ERISA Framework Under ERISA § 406(a), 29 U.S.C. § 1106(a), certain types of transactions between a plan and a party in interest are prohibited. A party in interest is broadly defined to include any fiduciary, a person providing services to the plan, an employer whose employees are covered by the plan, and certain shareholders and relatives. See § 3(14)(A)-(F), 29 U.S.C. § 1002(14)(A)-(F). The prohibited transactions between a plan and a party in interest, as set" } ]

[ { "docid": "14233857", "title": "", "text": "just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to.return a verdict for the nonmoving party. Id. The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-24, 106 S.Ct. 2548. If the moving party fails to bear the initial burden, summary judgment must be denied and the Court need not consider the non-moving party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). ' Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his or her pleading, but must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (citing Fed. R. Civ. P. 56 (1963)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct." }, { "docid": "8917817", "title": "", "text": "to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A “genuine issue” exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003). A fact is “material” if it “might affect the outcome of the suit under governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In a case where the non-moving party bears the ultimate burden of proof at trial, the movant may satisfy its burden by pointing to the absence of evidence supporting an essential element of the non-moving party’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When deciding a motion for summary judgment, a court must view the evidence and the inferences drawn from the evidence “in the light most favorable to the party opposing the motion.” Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). “Only when reasonable minds could not differ as to the import of evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). The function of the court is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Summary judgment is not appropriate if “there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party.” Ford, 316 F.3d at 354. However, the party against whom summary judgment is sought “must do more than simply show that there is some metaphysical doubt as to the material facts .... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola, v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002). B. Liberty’s Motion for Summary Judgment Plaintiff asserts" }, { "docid": "16817266", "title": "", "text": "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as ' a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party must support its assertions 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). The moving party bears the initial burden of demonstrating the absence of any genuine dispute as to a material fact, and all inferences should be made in favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party discharges its burden by “ ‘showing’ — that is, pointing out-to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir.2004) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). Once the moving party has met its initial burden, the,burden then shifts to the non-moving party, who “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[T]he mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). IV. ANALYSIS A. Count I: Breach of the TPP Defendants seek summary judgment on Plaintiffs breach of contract claim on four grounds: (1) Plaintiffs claim must" }, { "docid": "14841992", "title": "", "text": "91 L.Ed.2d 265 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant’s claim. Id. at 322-25, 106 S.Ct. 2548. Once the movant meets this burden, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient “simply [to] show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56(e) “requires the nonmoving party to go beyond the pleadings” and present some type of evi-dentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment must be entered “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, 477 U.S. at 322, 106 S.Ct. 2548. In considering a motion for summary judgment, the Court must view the facts and draw all inferences therefrom in a light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6 th Cir.1987). The moving party must show conclusively that there is no genuine issue of material fact. Id. However, at the summary judgment stage, the judge’s function is not to weigh the evidence and determine the truth of the matter. Wiley v. United States, 20 F.3d 222, 226 (6th Cir.1994) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). The Court is not to judge the evidence or" }, { "docid": "17287973", "title": "", "text": "motion for summary judgment. See infra pp. 818-20, 821-23. II. PLIVA’s Motion for Summary Judgment a. Summary Judgment Standard Pursuant to Federal Rule of Civil Procedure 56(a), the moving party is entitled to summary judgment if the pleadings, responses to discovery, and the record reveal that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As the party seeking summary judgment, the moving party bears the initial responsibility of informing this Court of the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This requires that the moving party identify those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; see also Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Though the moving party bears this initial responsibility, the nonmoving party, must then produce “specific facts showing that there is a genuine issue for trial.” Fed R. Civ. P. 56(e); see Celotex, 477 U.S. at 324, 106 S.Ct. 2548. In satisfying this burden, the nonmoving party must offer more than a mere “scintilla of evidence” that a genuine dispute of material fact exists, Anderson, 477 U.S. at 252, 106 S.Ct. 2505, or that there is “some metaphysical doubt” as to material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the nonmoving party must produce evidence on which a jury could reasonably find in their favor. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. In considering a motion for summary judgment, this Court construes all facts and reasonable inferences in the light most" }, { "docid": "12618914", "title": "", "text": "the issue of general causation. (Ps’ Mem. at 8-11, 17-32.) Defendants respond that the alleged admissions do not suffice to show causation because all fifty states mandate expert testimony, and that the documents and statements to which Plaintiffs point do not admit the existence of secondary perforation in any event. (Ds’ Mem. at 12-24.) II. Discussion A. Legal Standards Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct, 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law_Factual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. The movant bears the initial burden of demonstrating “the absence of a genuine issue of material fact,” and, if satisfied, the burden then shifts to the rion-movant to present “evidence sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “The mere existence of a scintilla of evidence in support of the [non-movant’s] po sition will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Moreover, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and he “may not rely on conclu-sory allegations or unsubstantiated" }, { "docid": "10140713", "title": "", "text": "judgment only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the district court’s “function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. The moving party bears the initial responsibility to point to the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the nonmoving party has the burden of proof at trial, the moving party can carry its initial burden either by submitting affirmative evidence that there is not a triable, factual dispute or by demonstrating that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case.” Id. at 322, 106 S.Ct. 2648. The burden then shifts to the nonmoving party “to designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). This means that the evidence is such that “a jury could reasonably render a verdict in the non-moving party’s favor.” Id. (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Miller" }, { "docid": "20039608", "title": "", "text": "a matter of law.” Fed.R.Civ.P. 56(a). “[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255, 106 S.Ct. 2505. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Moreover, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and she “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal quotation marks omitted). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations admissions, interrogatory answers, or other materials ...” Fed.R.Civ.P. 56(c)(1)(A). Where, as here, affidavits are used to support or oppose the motion, they “must be made on personal knowledge, set out facts that would be admissible" }, { "docid": "20958643", "title": "", "text": "the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied.” 11 Moore’s Federal Practice § 56.11[l][a] (Matthew Bender 3d ed.). An issue of material fact is genuine where “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Once the moving party has met its initial burden, the burden then shifts to the non-moving party to demonstrate that, as to a matex-ial fact, a genuine issue exists. Id. at 250, 106 S.Ct. 2505. The non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Id. Rather, the non-movant must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation max-ks omitted). To defeat a motion for summary judgment, “[t]he mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which, the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. In deciding a motion for summary judgment, the court must determine whether “the evidence presents a sufficient disagreement to require submission to a jury" }, { "docid": "11215034", "title": "", "text": "judgment as a matter of law.” Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party’s case. Id. at 325, 106 S.Ct. 2548. After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed. R.Civ.P. 56(e), the non-moving party “may not rest upon the mere allegations or denials of the adverse party’s pleadings,” but instead must come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be a sufficient showing that the jury could reasonably find for that" }, { "docid": "5330150", "title": "", "text": "as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although the Court must view the record “in the light most favorable to the non-moving party,” Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 324 (4th Cir. 2012), “[t]he mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient” to overcome a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Am. Arms Int’l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009). Rather, a genuine issue of material fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Where the nonmoving party bears the burden of proof, the party moving for summary judgment may prevail by showing “an absence of evidence to support” an essential element of that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Rhodes v. El. du Pont de Nemours & Co., 636 F.3d 88, 94 (4th Cir. 2011). Once the moving party has successfully demonstrated that absence, the nonmoving party must “come forward with specific facts,” rather than just “metaphysical doubt[s]” or conclusory allegations, that prove that there is a genuine dispute for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotations omitted); see also Erwin v. United States, 591 F.3d 313, 319 (4th Cir. 2010). The failure to do so “renders all other facts immaterial” and entitles the movant to summary judgment as a matter of law. Rhodes, 636 F.3d at 94. The court must “draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion;” however, “those inferences must, in every case, fall within the range of reasonable probability and not be so tenuous as to amount to speculation" }, { "docid": "5687395", "title": "", "text": "the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party'is entitled to a judgment as a matter of law.” Fed.R.Civ.P.. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party’s case. Id. at 325, 106 S.Ct. 2548. After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed. R.Civ.P. 56(e), the non-moving party “may not rest upon the mere allegations or denials of the adverse party’s pleadings,” but instead must come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. “A mere ‘scintilla’ of" }, { "docid": "12719870", "title": "", "text": "in support show that no genuine issue as to any material fact remains and the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when there is “sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). The moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The non-moving party must do more than show that there is some abstract doubt as to the material facts. It must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. See Moore v. Philip Morris Companies, 8 F.3d 335, 339-40 (6th Cir.1993). B. Standard Applicable to Pleading Amendments Leave to file an amended complaint shall be freely given when justice so requires. See Fed. R. Civ. P. 15(a). To deny a motion for leave to amend a complaint the Court must provide a reason for denying the motion," }, { "docid": "1025979", "title": "", "text": "hired to that position by Salyer. On July 11, 2001, Patton allegedly raped Doe in the jury room of the courthouse, forming the basis for Doe’s complaint. And although charged in state court for the subject rape that allegedly occurred nearly three and one-half years ago, that matter has been continued on several occasions. II. LEGAL STANDARD Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute over a material fact is not “genuine” unless a reasonable jury could return a verdict for the nonmoving party. That is, the determination must be “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co., Inc., 285 F.3d 415 (6th Cir.2002). Once the movant has satisfied this burden, the non-movant must go beyond the assertions made in the pleadings and come forward with specific evidence to demonstrate that there is a genuine issue of material fact. Id. The nonmoving party cannot rely upon the assertions in its pleadings; rather, that party must come forward with probative evidence, such as sworn affidavits, to support its claims. Celotex, at 324, 106 S.Ct. 2548. However, the trial court does not have a duty to search the entire record to establish that it is bereft of any genuine issue of material fact. In re Morris, 260 F.3d 654 (6th Cir.2001). The nonmoving party has an" }, { "docid": "467390", "title": "", "text": "immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Civ. P. 56(c)). The trial court’s function at this juncture is not “to weigh the evidence and determine the truth of the matter but to deter mine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations 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. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Barfield v. Brierton, 888 F.2d 923, 938 (11th Cir.1989). The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ ” that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (citing Fed. R. Civ. P. 56(c)). The mechanics of satisfying the initial burden vary, however, depending upon which party, the movant or the nonmovant, bears the burden of proof at trial. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (detailing the nature of the parties’ responsibilities when preparing or defending against a motion for summary judgment). Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmov-ing party. The nonmoving party must “go beyond the pleadings and by [his or] her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (citing Fed. R. Civ. P. 56(e)). In meeting this burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec." }, { "docid": "6777218", "title": "", "text": "a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotations omitted). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248, 106 S.Ct. 2505. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255, 106 S.Ct. 2505. Once the moving party has initially shown “that there is an absence of evidence to support the nonmoving party’s case,” the non-mov-ant must come forward, after adequate time for discovery, with significant proba tive evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir.1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251, 106 S.Ct. 2505. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant’s favor. Id. The pleadings are not summary judgment evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). The nonmoving party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Giles v. General Elec. Co., 245 F.3d 474, 493 (5th Cir.2001) (quoting Celotex, 477 U.S. at 324, 106 S.Ct. 2548). Absent a showing that there is a genuine issue for trial, a properly supported motion for summary judgment should be granted. See Eversley v. MBank Dallas," }, { "docid": "21990085", "title": "", "text": "Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes about material facts will preclude the granting of summary judgment. Id. The burden is on the summary judgment movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline & French Lab., 919 F.2d 301, 303 (5th Cir.1990). If the non-movant bears the burden of proof at trial, the summary judgment movant need not support its motion with evidence negating the non-movant’s case. Rather, the movant may satisfy its burden by pointing to the absence of evidence to support the non-movant’s case. Id.; Little, 37 F.3d at 1075. Once the movant has met its burden, the non-movant must show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “This burden is not satisfied with ‘some metaphysical doubt as to material facts,’ ... by ‘conclusory allegations,’ ... by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (emphasis in original) (quoting FED. R. CIV. P. 56(e)). To determine whether a genuine issue exists for trial, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir.2000); Anderson, 477 U.S. at 248, 106 S.Ct. 2505. III. Analysis" }, { "docid": "16684871", "title": "", "text": "there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 66(c). The rule provides that “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant’s claim. Id. at 323, 106 S.Ct. 2548. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party’s case, and on" }, { "docid": "11822226", "title": "", "text": "on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of “informing the ... court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant satisfies this burden, the nonmoving party must then “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The mere allegation of a factual dispute is not sufficient to defeat a motion for summary judgment; to prevail, the nonmoving party must show that there exists some genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When deciding a motion for summary judgment, all justifiable inferences must be viewed in a light most favorable to the nonmoving party. Matsushita Elec Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The Sixth Circuit has articulated the following standard to apply when evaluating a motion for summary judgment: [T]he moving party may discharge its burden by “pointing out to the ... court ... that there is an absence of evidence to support the nonmoving party’s case.” The nonmoving party cannot rest on its pleadings, but must identify specific facts supported by affidavits, or by depositions, answers to interrogatories, and admissions on file that show there is a genuine issue for trial. Although we must draw all inferences in favor of the nonmoving party, it must present significant and probative evidence in support of its complaint. “The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find" }, { "docid": "18474490", "title": "", "text": "motion for summary judgment. Plaintiff filed a response to Defendant’s motion on April 6, 2001. Discussion Summary judgment is proper only if there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law. Hunter v. Caliber Sys., Inc., 220 F.3d 702, 709 (6th Cir.2000); see also Fed. R. Civ. P. 56(c). There is no genuine issue of material fact for trial unless, by viewing the evidence in a light most favorable to the nonmoving party, a reasonable jury could “return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994). The nonmoving party must present significant probative evidence in support of its opposition to the motion for summary judgment. Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339-40 (6th Cir.1993). If, after adequate time for discovery, the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. Defendant contends that it is entitled to summary judgment because this Court lacks jurisdiction over a majority of Plaintiffs claims, and because the statutory provisions relied upon by Plaintiff do not apply to the facts of" } ]

[ { "docid": "16990217", "title": "", "text": "for. In other words, the effort is to restore the plaintiff by injunction to rights of which he had been deprived. The function of an injunction is to afford preventive relief, not to redress alleged wrongs which had been committed already. An injunction will not be used to take property out of the possession of one party and put it Into that of another. * * ⅜ The plaintiff has a full, adequate, and complete remedy at law, and the case is not one for the jurisdiction of a court of equity.” See, also, Gordon v. Jackson (C. C.) 72 Fed. 86; Randolph v. Allen, 19 C. C. A. 353, 73 Fed. 23, 30; Grether v. Wright, 23 C. C. A. 498, 75 Fed. 742, 748; Childs v. Carlstein Co. (C. C.) 76 Fed. 86, 95; Davidson v. Calkins (C. C.) 92 Fed. 230, 232, and authorities there cited; Morrison v. Marker (C. C.) 93 Fed. 692, 695, and authorities there cited; Hanley v. Coal Co. (C. C.) no Fed. 62, 69. We are of opinion that the circuit court had no jurisdiction to try the title to the property, or to adjudge the complainant to be entitled to the possession thereof. Appellants’ counsel claim that the bill was framed upon the theory that the controversy of the parties before the land department turned solely upon a pure question of law, to be finally determined by th'e court, and did not and does not involve any question of fact over which the land department had or has exclusive jurisdiction. But, in any event, if the court should hold that it had no jurisdiction to try the title between the parties, or to enter a decree for the possession thereof as prayed for in the bill, it nevertheless has jurisdiction and should have entertained the bill in so far as it asked for an injunction to preserve the statu quo pending the determination- of the controversy between the parties in the land department. The general disposition of the courts is to retain jurisdiction of any subject where there is any plausible" } ]

[ { "docid": "23415570", "title": "", "text": "applied except where “a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction” or where there is a “clear and valid legislative command” limiting jurisdiction. Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946). Second, the Court held that the plain language of § 1964(a) requires a showing of a reasonable likelihood of future RICO violations before entering any equitable remedies. Third, the Court noted that one of the purposes of civil remedies under § 1964(a) is “to divest the association of the fruits of its ill-gotten gains.” United States v. Turkette, 452 U.S. 576, 585, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Finally, based on the foregoing conclusions, the Court held that disgorgement prevents and restrains future RICO violations and is appropriate as an equitable civil RICO remedy. Our Court of Appeals, in a 2-1 opinion written by Judge Sentelle, interpreted § 1964(a) to authorize only those remedies that are enumerated in the statute and equitable relief that “prevents and restrains” a defendant from engaging in future RICO violations. Accordingly, this Court is limited to ordering “remedies explicitly included in the statute,” and “remedies similar in nature to those enumerated,” see United States of America v. Philip Morris, Inc., 396 F.3d 1190, 1200, 1197 (2005) (quotations and internal citations omitted). Finding that all examples of appropriate remedies given in the text of the statute are “aimed at separating the RICO criminal from the enterprise so that he cannot commit violations in the future,\" id. at 1198 (emphasis in original), and that the terms “prevent and restrain” are also “aimed at future actions,” id. at 1199, the D.C. Circuit concluded that remedies similar in nature to those enumerated are “forward-looking remedies that are aimed at future violations,” id. at 1198. Although the Government initially sought $289 billion in disgorgement in this case, Judge Sentelle’s majority opinion explained that disgorgement is not an available remedy under § 1964(a) because it is not forward looking and does not separate the RICO criminal from the enterprise. The court characterized" }, { "docid": "9698829", "title": "", "text": "to the review was suspended by statute, the Court in Industrial Quimica Del Nalon, 13 CIT at 1055, 729 F.Supp. at 103, ordered an injunction suspending liquidation of the entries subject in this action. The injunction dissolved and suspension of liquidation was removed on July 17, 1993, the date after which an appeal of the judgment of the Court regarding the final anti-dumping duty margin rate became time-barred. See Fujitsu Gen. Am., Inc., 283 F.3d at 1379; Hosiden Corp. v. Advanced Display Mfrs. of Am., 85 F.3d 589, 590-91 (Fed.Cir.1996); Timken Co. v. United States, 893 F.2d 337, 339-40 (Fed.Cir.1990). The court now turns to the issue of when Customs received notice of the removal of the suspension of liquidation by Commerce for purposes of 19 U.S.C. § 1504(d). Plaintiff maintains that Customs received notice of the removal of the suspension of liquidation via the February 2, 2000 e-mail message from Commerce. The electronic communication from Commerce to Customs stated that “[rjecords at the Department of Commerce indicate that there should be no unliquidated entries of potassium permanganate from Spain ... held by Customs for antidumping purposes during the period 01/19/1984 through 12/31/1999.” Def.’s Opp’n Attach. 1 at 4b. This communication was forwarded to the various port directors of Customs, including those in New Orleans and Houston, on February 3, 2000. Def.’s Opp’n at 3. Defendant contends that the February 2, 2000 e-mail message did not provide notice sufficient under 19 U.S.C. § 1504(d) because the message “did not state that suspension of liquidation was removed for any entry made during the 16 year period. Moreover, the e-mail message did not state that judicial review was completed.” Id. at 12-13. Defendant also argues that the e-mail message does not constitute proper notice under § 1504(d) because it “did not inform Customs of the amount of antidumping duty to be assessed against the entries, which is a necessary part of a notice of removal of suspension.” Id. at 13. The e-mail message, defendant maintains, “was part of a larger project undertaken by Commerce to have Customs identify entries [Customs] was holding" }, { "docid": "20364706", "title": "", "text": "section 1335, the district courts retain their traditional equitable discretion when deciding whether to hear a statutory interpleader case or defer to a state court; and the other is whether- the district courts have a “virtually unflagging obligation” to exercise their section 1335 jurisdiction. In this regard, we find the Supreme Court’s decision in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), instructive. There, the Court considered whether, under the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. (1976 Ed. and Supp. IV), the district courts must enjoin violations of the Act or whether they retain the broad discretion that equity jurisdiction provides them in deciding issues of injunctive relief. To decide the issue, the Court looked to the overall structure and language, purpose and legislative history of the Act to determine whether Congress clearly intended to alter traditional equity practices, stating: ‘[T]he comprehensiveness of [the district court’s] equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. The great principles of equity, securing complete justice, should not be yielded to light inferences or doubtful construction.’ Id. at 313, 102 S.Ct. at 1804 (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946)). The Court cautioned, however, that “[of] course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles.” Id., 456 U.S. at 313, 102 S.Ct. at 1803. Ultimately, the Court found nothing in the Clean Waters Act’s language, structure, purpose or legislative history evidencing Congress’ intent to deny the courts their traditional equitable discretion in deciding matters of equitable relief. Id. at 319, 102 S.Ct. at 1806-07. Compare Bowles, 321 U.S. at 321, 64 S.Ct. at 588 (holding that the phrase" }, { "docid": "18120495", "title": "", "text": "in the action.” Id. at 339-40. . The Government has in the past argued that \"a decision of the CIT is not final for the purposes of publication of notice until (1) an appeal is decided by this court, or (2) the time for appeal expires.” Timken, 893 F.2d at 338. . Should a losing party appeal, the court does not have discretion to moot the appeal by amending, modifying, or dissolving the injunction so as to permit liquidation of the appellant’s entries prior to a conclusive decision by the appeals court. Hosiden Corp. v. Advanced Display Mfrs. Of America, 85 F.3d 589, 591 (Fed.Cir.1996). . The plaintiff in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 F. 4 (9th Cir.1901) instituted a suit in an attempt to regain possession of his property by means of an injunction. The court stated that \"[t]he function of an injunction is to afford preventive relief, not to redress alleged wrongs which had been committed already. An injunction will not be used to take property out of the possession of one party and put it into that of another.” Id. at 10. (Internal citations omitted). . The Supreme Court explained in Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), that equitable jurisdiction is not limited in the absence of a clear and valid legislative command. Unless a statute, in words or by a necessary inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction must be recognized and applied. Id. (citing Brown v. Swann, 35 U.S. 497, 503, 511, 10 Pet. 497, 9 L.Ed. 508, 511 (1836)). \" 'The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' \" Id. . \"The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. 137, 170, 1 Crunch 137, 2 L.Ed. 60 (1803); see also Morrison v. Olson, 487 U.S. 654," }, { "docid": "10310037", "title": "", "text": "court decision in the action” for the purposes of this statute in Timken Co. v. United States, 893 F.2d 337 (Fed.Cir.1990). In Timken, the Federal Circuit, while acknowledging that the term “ ‘final decision’ can mean different things in different situations,” found that 19 U.S.C. § 1516a(e)(2) required that a “final decision” is a decision that is “conclusive,” where all appeals or possibility of appeals are foreclosed. 893 F.2d at 339. The court held that “an appealed CIT decision is not a ‘final court decision’ within the plain meaning of § 1516a(e).” Id. This court further noted that “ § 1516a(e) does not require liquidation in accordance with an appealed CIT decision, since that section requires that liquidation take place in accordance with the final court decision in the action.” Id. at 340. The Federal Circuit has also addressed this issue in Hosiden Corp. v. Advanced Display Manufacturers of America, 85 F.3d 589 (Fed.Cir.1996). As in Timken, the court found that “[i]n accordance with 19 U.S.C. § 1516a(e), entries of merchandise for which liquidation has been suspended by court order remain subject to suspension of liquidation until there is a ‘final court decision in the action.’ ” Id. at 590. The court reiterated that “[a] decision of the Court of International Trade that has been appealed ‘is not a “final court decision” within the plain meaning of § 1516a(e)’ ” and that “[sjtatute and precedent are clear that the decision of the Court of International Trade is not a ‘final court decision’ when appeal has been taken to the Federal Circuit.” Id. at 591. Most recently this court has reviewed “final decision” in the context of section 1516a(e) in Fujitsu General America, Inc. v. United States, 283 F.3d 1364 (Fed.Cir.2002). In Fujitsu, liquidation was enjoined pursuant to 19 U.S.C. § 1516a(c)(2). Continuing the logic of Timken and Hosiden, the Federal Circuit found that the injunction would end, according to section 1516a(e), when the decision was “final” or conclusive such that it could no longer be appealed. Id. at 1379. The decision became “final” and the injunction dissolved on the date" }, { "docid": "18120494", "title": "", "text": "the opportunity to present their cases nor receive a final decision on the merits. \"Thus when the injunctive aspects of a case become moot on appeal of a preliminary injunction, any issue preserved by an injunction bond can generally not be resolved on appeal, but must be resolved in a trial on the merits.”); see also Venezia v. Robinson, 16 F.3d 209, 211 (7th Cir.1994) (stating that \"a preliminary injunction cannot survive the dismissal of a complaint”). . The court found the fact that \"the term 'final court decision’ [in § 1516a(e)] must be read together with the words that follow, specifically, 'in the action.’ An 'action' does not end when one court renders a decision, but continues through the appeal process. Thus, an appealed CIT decision is not the final court decision in the action.” Timken, 893 F.2d at 339. Moreover, the Federal Circuit found that § 1516a(e) did not \"require liquidation in accordance with an appealed CIT decision, since that section requires that liquidation take place in accordance with the final court decision in the action.” Id. at 339-40. . The Government has in the past argued that \"a decision of the CIT is not final for the purposes of publication of notice until (1) an appeal is decided by this court, or (2) the time for appeal expires.” Timken, 893 F.2d at 338. . Should a losing party appeal, the court does not have discretion to moot the appeal by amending, modifying, or dissolving the injunction so as to permit liquidation of the appellant’s entries prior to a conclusive decision by the appeals court. Hosiden Corp. v. Advanced Display Mfrs. Of America, 85 F.3d 589, 591 (Fed.Cir.1996). . The plaintiff in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 F. 4 (9th Cir.1901) instituted a suit in an attempt to regain possession of his property by means of an injunction. The court stated that \"[t]he function of an injunction is to afford preventive relief, not to redress alleged wrongs which had been committed already. An injunction will not be used to take property out of the" }, { "docid": "17277323", "title": "", "text": "pursuant to 19 U.S.C. § 1516a(c)(2) or (2) a final court decision adjudicating the legality, vel non, of the challenged determination. 19 U.S.C. 1516[a](e).” Before a final court decision, therefore, the agency determination governs entry of merchandise. 19 U.S.C. § 1516a(c)(l)(1988). A partial summary judgment is not a final decision. Hence the trial court’s instructions respecting duties constituted an improper attempt to affect the administrating handling of entries prior to any final court decision. Following an affirmative agency finding of dumping, estimated duties are to be collected pending liquidation. 19 U.S.C. § 1516(b),® (1988); 19 C.F.R. § 353.39(e), .48(c)(1989). Because the agency determination requiring deposit of estimated antidumping duties operates until a final court decision adverse to that of the agency, estimated duties are properly collectable from NTN. Id. (footnotes omitted) (emphasis in original). Thus, under the Federal Circuit’s reasoning in NTN Bearing, this court can order no adjustment to a cash deposit rate prior to a “final court decision.” Id. In the case at issue here, all parties (more or less) acknowledge that this language from NTN Bearing is determinative; nonetheless, the parties disagree as to what this language means. The disagreement stems from the fact that the phrase “final court decision” has multiple meanings. Commerce avers that “final court decision,” as used in NTN Bearing, refers to a “conclusive court decision.” For this proposition, Commerce cites various decisions interpreting Congress’ use of the phrase “final court decision” in Section 1516a(e). See, e.g., Yancheng Baolong Biochemical Prods. Co., 406 F.3d at 1381-82 (preliminary injunction on liquidation of entries remains until a final and conclusive court decision); Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1379 (Fed.Cir.2002) (finding that a preliminary injunction dissolves upon issuance of a final and conclusive court opinion); Hosiden Corp. v. Advanced Display Mfrs. Of America, 85 F.3d 589, 591 (Fed.Cir.1996) (“The Court of International Trade does not have discretion to require liquidation before the final decision on appeal.” 19 U.S.C. § 1516a(e) requires that liquidation, once enjoined, remains suspended until there is a “conclusive court decision which decides the matter, so that subsequent" }, { "docid": "16958236", "title": "", "text": "the preliminary injunction as moot. Id. at 1104. In Timken, the CIT denied a preliminary injunction and remanded the case to Commerce to redetermine the dumping margin. Timken, 893 F.2d at 338. After remand, the CIT affirmed Commerce’s redetermination and entered judgment for the Government. Id. Before any appeal had been filed, the plaintiff sought a writ of mandamus to compel Commerce to publish notice of the CIT’s decision under § 1516a(e), which states that “notice of the court decision shall be published within ten days from the date of the issuance of the court decision.” Id. The CIT granted the plaintiff’s writ of mandamus ordering Commerce to publish notice of the CIT decision. Id. at 339. The Government appealed the CIT’s order granting the writ. Id. at 338. The Government argued that a decision of the CIT was not a final decision under § 1516a(e) for the purposes of publication “until an appeal was decided by the Federal Circuit or the time for appeal had expired.” Id. at 339. In analyzing the text of § 1516a(e), the Federal Circuit distinguished between liquidation which required a “final decision in the action” and publication which only required a “court decision.” Id. at 340. The Federal Circuit held that even though a CIT decision was not ‘final’ for the purposes of § 15I6a(e) when appeal had been taken to the Federal Circuit, Commerce was required to publish notice of a CIT decision within 10 days of issuance because § 1516a(e) did not use the word ‘final’ in mandating that “notice of the court decision shall be published within 10 days.” Id. (emphasis added). In Hosiden, a preliminary injunction had been issued by the CIT in the underlying case. Hosiden, 85 F.3d at 590-591. The CIT affirmed the International Trade Commission’s amended determination on remand. Hosiden Corp. v. United States, 852 F. Supp. 1050, 1061 (Ct. Int’l Trade 1994). In its decision, the CIT ordered Commerce to revoke an anti-dumping duty order against the plaintiffs, refund cash deposits, and terminate the administrative reviews within ten days. Id. The Government then published a “Notice" }, { "docid": "16958204", "title": "", "text": "preliminary injunctions and that “only the [Federal Circuit] sitting en banc is empowered to overturn” that decision. (Id. at 16-17 (citing Newell Cos., Inc. v. Kenny Mfg. Co., 864 F.2d 757, 765 (1988)).) Therefore, the Government contends that any opinion of the Federal Circuit issued after the 1988 decision in Fundicao Tupy should be construed in a manner that is consistent with the holding in Fundicao Tupy. (Id. at 13.) First, the Government outlines its interpretation of the holding in Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990). According to Defendant, the Timken court held that if the CIT renders an opinion that is “not in harmony” with the agency’s original determination, “it is necessary to suspend liquidation until there is a conclusive decision in the action.” (Def.’s Br. at 11 (citing Timken, 893 F.2d at 341).) The Government asserts that this type of automatic injunction following a CIT decision that is “not in harmony” with the agency’s original determination is referred to as a “Timken-injunction.” (Id.) Defendant contends that a “Timkeninjunction” continues to suspend liquidation throughout the appeals process. (Id.) However, Defendant asserts that if the CIT issues a decision that is “in harmony” with the agency’s original determination, there is no automatic “Timken-injunction.(Id.) Therefore, any preliminary injunction issued by the CIT dissolves when the CIT enters judgment on the merits and liquidation is not suspended during the appeals process absent a new injunction pending appeal. (Id. ) Next, the Government attempts to distinguish the Federal Circuit’s holding in Hosiden Corp. v. United States, 85 F.3d 589 (Fed. Cir. 1996) from the case at bar. (Id. at 14-15.) The Government contends that Hosiden is distinguishable because the CIT’s decision in Hosiden was “not in harmony” with the agency’s original determination. (Id. at 15.) The Government contends that “suspension of liquidation [in Hosiden] pending the issuance of a final and conclusive decision [on appeal] was required following the holding in Timken (irrespective of whether a preliminary injunction was in effect).” (Id.) The Government argues that any other construction of Hosiden would be impermissible and “flatly inconsistent" }, { "docid": "3941458", "title": "", "text": "the terms of the injunction itself preclude dissolution; (7) there are no “changed circumstances” that make maintenance of the injunction inequitable or warrant dissolution of the injunction; (8) plaintiffs do not have the burden of again relitigating the prerequisites for injunctive relief in order to avoid a dissolution of the injunction; (9) the burden of proof to show that the maintenance of the injunction would be inequitable is on the party moving for dissolution, viz., Ferroven. DISCUSSION 1. The relevant statutory provisions. The relevant language of the statute, 19 U.S.C. § 1516a(e), provides that “[i]f the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit — * * * (2) entries, the liquidation of which was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance unth the final court decision in the action” (Emphasis added.). The statutory language is clear, it is undisputed that there has been no final decision in this ease, and therefore, under the terms of the statute, liquidations remain enjoined until a final decision. See Hosiden Corp. v. Advanced Display Mfrs. Of America, 85 F.3d 589, 591 (Fed.Cir.1996) (“19 U.S.C. § 1516a(e) requires that liquidation, once enjoined, remains suspended until there is a ‘conclusive court decision which decides the matter, so that subsequent entries can be liquidated in accordance with that conclusive decision’.” Id. (quoting Timken Co. v. United States, 893 F.2d 337, 342 (Fed.Cir.1990)) (emphasis by Federal Circuit)) 2. The terms and conditions of the injunction. Ferroven’s reliance on the terms and conditions of the injunction itself with reference to “revocation” of the countervailing duty order are misplaced. Thus, the injunction, at 2-3, provides in pertinent part: Nothing contained in this Order shall prevent the ultimate liquidation of the subject entries with the assessment of countervailing duties after the final and conclusive Court decision unless a final decision in this or another action results in the revocation of the above-referenced countervailing duty order. In the event of such" }, { "docid": "3941459", "title": "", "text": "final decision in this ease, and therefore, under the terms of the statute, liquidations remain enjoined until a final decision. See Hosiden Corp. v. Advanced Display Mfrs. Of America, 85 F.3d 589, 591 (Fed.Cir.1996) (“19 U.S.C. § 1516a(e) requires that liquidation, once enjoined, remains suspended until there is a ‘conclusive court decision which decides the matter, so that subsequent entries can be liquidated in accordance with that conclusive decision’.” Id. (quoting Timken Co. v. United States, 893 F.2d 337, 342 (Fed.Cir.1990)) (emphasis by Federal Circuit)) 2. The terms and conditions of the injunction. Ferroven’s reliance on the terms and conditions of the injunction itself with reference to “revocation” of the countervailing duty order are misplaced. Thus, the injunction, at 2-3, provides in pertinent part: Nothing contained in this Order shall prevent the ultimate liquidation of the subject entries with the assessment of countervailing duties after the final and conclusive Court decision unless a final decision in this or another action results in the revocation of the above-referenced countervailing duty order. In the event of such revocation, liquidation may proceed without the assessment of countervailing duties. In the absence of revocation, liquidation may proceed after the final and conclusive Court decision on the subject entries Fundamentally, of course, the terms of the preliminary injunction order with reference to liquidation of entries and revocation of a countervailing duty order must be read to harmonize with the pertinent statutory provisions for the injunction itself, for liquidation of entries the liquidation of which has been enjoined, and for revocation of countervailing duty orders. Thus, under both the statute and the express terms of the injunction, liquidation of entries is enjoined until (1) after the final and conclusive Court decision in this action covering the subject entries, or (2) after a final decision in this or another action results in revocation of the countervailing duty order. Clearly, neither of the foregoing alternative events has occurred. Clearly, there was no “revocation” of the countervailing duty order by Commerce, but rather a “rescission” ab initio. However, even assuming arguendo that Commerce’s “rescission” of the countervailing duty order" }, { "docid": "16958224", "title": "", "text": "is a ‘final court decision in the action.’ ” Hoisden, 85 F.2d at 590 (citing 19 U.S.C. § 1516a(e)). The Federal Circuit reasoned that “[s]tatute and precedent are clear that the decision of the [CIT] is not a ‘final court decision’ when appeal has been taken to the Federal Circuit.” Id. at 591. The Federal Circuit quoted Timken in concluding that “§ 1516a(e) requires that liquidation, once enjoined, remains suspended until there is a ‘conclusive court decision which decides the matter, so that subsequent entries can be. liquidated in accordance with that conclusive decision.’ ” Id. (quoting Timken, 893 F.2d at 342). In 2002, the Federal Circuit explicitly affirmed the CIT’s holding that a preliminary injunction granted by the Court suspending liquidation did not dissolve until “the time for petitioning the Supreme Court for a writ of certiorari expired.” Fujitsu, 283 F.3d at 1379. Although the court considered many questions in Fujitsu, the pertinent determination is the Federal Circuit’s holding that the “removal of the suspension of liquidation” under § 1504(d) did not occur until after the time for petition for writ of certiorari had expired. Id. at 1378-1379. Citing its decision in Timken, the Federal Circuit reasoned that suspension of liquidation was not “removed” until there had been a “final court decision within the plain meaning of § 1516a(e).” Id. at 1379 (citing Timken, 893 F.2d at 339). The court stated that “there is not a ‘final court decision’ in an action that originates in the [CIT] and in which there is an appeal to the Federal Circuit until, following the decision of the Federal Circuit, the time for petitioning the Supreme Court for certiorari expires without the filing of a petition.” Id. Nowhere in Hosiden or in Fujitsu does the Federal Circuit focus on the “in harmony” or “not in harmony” aspect of the CIT’s decisions. Rather, the deciding factor in this line of cases is the finality of a court decision for the purposes of liquidation under § 1516a(e). Further, the Government’s reliance on Fundicao Tupy is misplaced. The Federal Circuit’s decision in Fundicao Tupy has no" }, { "docid": "16958223", "title": "", "text": "to issue an “adverse decision.” As the Federal Circuit held in Zenith, the Federal Circuit no longer has jurisdiction to decide a case if the subject entries have been liquidated. Zenith, 710 F.2d at 810. This Court is unpersuaded by Defendant’s contention that the August 2001 Preliminary Injunction was ambiguous because the law is “not exactly clear concerning how long an action is pending.” (Def.’s Br. at 17 (citing Aug. 2001 Prelim. Inj. at 1).) In Timken, the Federal Circuit resolved this ambiguity: “An ‘action’ does not end when a court renders a decision, but continues through the appeal process.” Timken, 893 F.2d at 339. The later decisions of the Federal Circuit also support this Court’s finding that the August 2001 Preliminary Injunction was a valid court order suspending liquidation throughout the appeals process. In Hosiden, the Federal Circuit vacated the CIT’s writ of mandamus and held that “[i]n accordance with 19 U.S.C. § 1516a(e), entries of merchandise for which liquidation has been suspended by court order remain subject to suspension of liquidation until there is a ‘final court decision in the action.’ ” Hoisden, 85 F.2d at 590 (citing 19 U.S.C. § 1516a(e)). The Federal Circuit reasoned that “[s]tatute and precedent are clear that the decision of the [CIT] is not a ‘final court decision’ when appeal has been taken to the Federal Circuit.” Id. at 591. The Federal Circuit quoted Timken in concluding that “§ 1516a(e) requires that liquidation, once enjoined, remains suspended until there is a ‘conclusive court decision which decides the matter, so that subsequent entries can be. liquidated in accordance with that conclusive decision.’ ” Id. (quoting Timken, 893 F.2d at 342). In 2002, the Federal Circuit explicitly affirmed the CIT’s holding that a preliminary injunction granted by the Court suspending liquidation did not dissolve until “the time for petitioning the Supreme Court for a writ of certiorari expired.” Fujitsu, 283 F.3d at 1379. Although the court considered many questions in Fujitsu, the pertinent determination is the Federal Circuit’s holding that the “removal of the suspension of liquidation” under § 1504(d) did not occur until" }, { "docid": "22259794", "title": "", "text": "as follows: (e) Liquidation in accordance with final decision If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit — • (1) entries of merchandise of the character covered by the published determination of the Secretary, the administering authority, ’ or the Commission, which is [sic] entered, or withdrawn from warehouse, for consumption after the date of publication in the Federal Register by the Secretary or the administering authority of a notice of the court decision, and (2) entries, the liquidation of which was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance with the final court decision in the action. Such notice of the court decision shall be published within ten days from the date of the issuance of the court decision. Liquidation of the Protest 3 entries was enjoined pursuant to 19 U.S.C. § 1516a(c)(2). The Court of International Trade determined that, as used in section 1516a(e), the term “final” means “conclusive” and that a court decision is conclusive when it can no longer be appealed. Fujitsu, 110 F.Supp.2d at 1075. The court reasoned that our decision of July 3, 1996 in Fujitsu General could not have served as notice to Customs of the removal of the court-ordered suspension because, under section 1516a(e)(2), the injunction did not dissolve on that date. Rather, the injunction dissolved on October 1, 1996, when “the time allowed for applying for a writ of certiorari for review in the U.S. Supreme Court expired.” Id. In reaching its conclusion as to when our decision in Fujitsu General became “final,” the Court of International Trade relied on decisions of this court holding that a decision of the Court of International Trade is not “final” for purposes of section 1516a(e) when it has been appealed to the Federal Circuit. See Hosiden Carp. v. Advanced Display Mfrs. of America, 85 F.3d 589, 591 (Fed.Cir.1996); Timken Co. v. United States, 893 F.2d 337, 339-40 (Fed.Cir.1990). Having determined that our decision" }, { "docid": "6054211", "title": "", "text": "the objectives of the act. Yet, here, as in Weinberger, an injunction is not the only means of ensuring compliance with the statute. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 314, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91 (1982). The compact provides for fines and criminal penalties. See, e.g., N.J.S.A. § 32:23-88. Consequently, there is no reason why the Court must grant an injunction, even if the Commission meets its burden under the statute. If this Court had any doubt, it would nevertheless come to the same conclusion. As the Supreme Court has noted, while “Congress may intervene and guide or control the exercise of the court’s discretion, ... we do not lightly assume that Congress has intended to depart from established principles” of courts’ exercising equitable discretion. Romero-Barcelo, 456 U.S. at 310-13, 102 S.Ct. at 1802-04. Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. ‘Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.’ Id. at 313, 102 S.Ct. at 1804 (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946)); accord Flynn v. United States By and Through Eggers, 786 F.2d 586, 591 (3d Cir.1986) (holding that, absent a clear Congressional statement, courts should not infer that Congress intended to alter equity practices). In sum, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances,” and “a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” TVA, 437 U.S. at 193, 98 S.Ct. at 2301; Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591-92, 88 L.Ed. 754 (1944). Therefore, the Court finds that Congress in consenting to N.J.S.A. § 32:23-90 did not foreclose the Court from exercising its traditional equitable discretion in this matter. The Court may" }, { "docid": "10310036", "title": "", "text": "set forth in 19 U.S.C. § 1516a(e). The statutory text of section 1516a(e) is as follows: (e) Liquidation in accordance with final decision If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit— (1) entries of merchandise of the character covered by the published determination of the Secretary, the administering authority, or the Commission, which is entered, or withdrawn from warehouse, for consumption after the date of publication in the Federal Register by the Secretary or the administering authority of a notice of the court decision, and (2) entries, the liquidation of which was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance with the final court decision in the action. Such notice of the court decision shall be published within ten days from the date of the issuance of the court decision. 19 U.S.C. § 1516a(e) (2000). This court has previously determined what constitutes “the final court decision in the action” for the purposes of this statute in Timken Co. v. United States, 893 F.2d 337 (Fed.Cir.1990). In Timken, the Federal Circuit, while acknowledging that the term “ ‘final decision’ can mean different things in different situations,” found that 19 U.S.C. § 1516a(e)(2) required that a “final decision” is a decision that is “conclusive,” where all appeals or possibility of appeals are foreclosed. 893 F.2d at 339. The court held that “an appealed CIT decision is not a ‘final court decision’ within the plain meaning of § 1516a(e).” Id. This court further noted that “ § 1516a(e) does not require liquidation in accordance with an appealed CIT decision, since that section requires that liquidation take place in accordance with the final court decision in the action.” Id. at 340. The Federal Circuit has also addressed this issue in Hosiden Corp. v. Advanced Display Manufacturers of America, 85 F.3d 589 (Fed.Cir.1996). As in Timken, the court found that “[i]n accordance with 19 U.S.C. § 1516a(e), entries of merchandise for which liquidation has" }, { "docid": "9698828", "title": "", "text": "to the four entries at issue and does not do so retroactively. B. The February 2, 2000 E-Mail Message Commerce Sent to Customs Constitutes Proper Notice Pursuant to 19 U.S.C. § 1504(d) In discussing liquidation by operation of law pursuant to 19 U.S.C. § 1504(d), the Court of Appeals in Fujitsu General America, Inc. v. United States concluded that “in order for a deemed liquidation to occur, (1) the suspension of liquidation that was in place must have been removed; (2) Customs must have received notice of the removal of the suspension; and (3) CusT toms must not liquidate the entry at issue within six months of receiving such notice.” 283 F.3d at 1376. Plaintiff argues that all three requirements have been met and that the entries at issue therefore should be deemed to have liquidated by operation of law at the rate asserted by plaintiff at the time of entry, which rate was zero. The court agrees. Following the administrative review of the Antidumping Duty Order, during which review liquidation of the entries subject to the review was suspended by statute, the Court in Industrial Quimica Del Nalon, 13 CIT at 1055, 729 F.Supp. at 103, ordered an injunction suspending liquidation of the entries subject in this action. The injunction dissolved and suspension of liquidation was removed on July 17, 1993, the date after which an appeal of the judgment of the Court regarding the final anti-dumping duty margin rate became time-barred. See Fujitsu Gen. Am., Inc., 283 F.3d at 1379; Hosiden Corp. v. Advanced Display Mfrs. of Am., 85 F.3d 589, 590-91 (Fed.Cir.1996); Timken Co. v. United States, 893 F.2d 337, 339-40 (Fed.Cir.1990). The court now turns to the issue of when Customs received notice of the removal of the suspension of liquidation by Commerce for purposes of 19 U.S.C. § 1504(d). Plaintiff maintains that Customs received notice of the removal of the suspension of liquidation via the February 2, 2000 e-mail message from Commerce. The electronic communication from Commerce to Customs stated that “[rjecords at the Department of Commerce indicate that there should be no unliquidated entries" }, { "docid": "22259795", "title": "", "text": "section 1516a(e), the term “final” means “conclusive” and that a court decision is conclusive when it can no longer be appealed. Fujitsu, 110 F.Supp.2d at 1075. The court reasoned that our decision of July 3, 1996 in Fujitsu General could not have served as notice to Customs of the removal of the court-ordered suspension because, under section 1516a(e)(2), the injunction did not dissolve on that date. Rather, the injunction dissolved on October 1, 1996, when “the time allowed for applying for a writ of certiorari for review in the U.S. Supreme Court expired.” Id. In reaching its conclusion as to when our decision in Fujitsu General became “final,” the Court of International Trade relied on decisions of this court holding that a decision of the Court of International Trade is not “final” for purposes of section 1516a(e) when it has been appealed to the Federal Circuit. See Hosiden Carp. v. Advanced Display Mfrs. of America, 85 F.3d 589, 591 (Fed.Cir.1996); Timken Co. v. United States, 893 F.2d 337, 339-40 (Fed.Cir.1990). Having determined that our decision in Fujitsu General, which caused the suspension of liquidation to be removed, became final on October 1, 1996, the Court of International Trade turned to the question of when Customs received notice that the suspension had been removed. Preliminarily, the court rejected the proposition that issuance of the Fujitsu General decision itself constituted notice for purposes of section 1504(d). Noting that “Customs’ role in antidumping matters is purely ministerial,” see Mitsubishi Elects. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir.1994), the court stated that it would not “attribute notice to Customs of a court decision reviewing a Commerce determination made under 19 U.S.C. § 1516a(a) without publication of notice of the court decision by Commerce in the Federal Register.” Fujitsu, 110 F.Supp.2d at 1077 (footnote omitted). Accordingly, the court held that Customs received notice of the removal of the suspension of liquidation relating to the entries at issue in Protest 3 only when Commerce published the following notice in the Federal Register on September 16, 1997: As there is now a final" }, { "docid": "18120496", "title": "", "text": "possession of one party and put it into that of another.” Id. at 10. (Internal citations omitted). . The Supreme Court explained in Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), that equitable jurisdiction is not limited in the absence of a clear and valid legislative command. Unless a statute, in words or by a necessary inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction must be recognized and applied. Id. (citing Brown v. Swann, 35 U.S. 497, 503, 511, 10 Pet. 497, 9 L.Ed. 508, 511 (1836)). \" 'The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' \" Id. . \"The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. 137, 170, 1 Crunch 137, 2 L.Ed. 60 (1803); see also Morrison v. Olson, 487 U.S. 654, 694, 108 S.Ct. 2597, 2620-21, 101 L.Ed.2d 569, 607 (1988) (quoting that \" '[w]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.' ” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153, 1199 (1952) (concurring opinion)). .The Supreme Court stated in United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999, 1005-06 (1932), that We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions.... Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always" }, { "docid": "17277324", "title": "", "text": "language from NTN Bearing is determinative; nonetheless, the parties disagree as to what this language means. The disagreement stems from the fact that the phrase “final court decision” has multiple meanings. Commerce avers that “final court decision,” as used in NTN Bearing, refers to a “conclusive court decision.” For this proposition, Commerce cites various decisions interpreting Congress’ use of the phrase “final court decision” in Section 1516a(e). See, e.g., Yancheng Baolong Biochemical Prods. Co., 406 F.3d at 1381-82 (preliminary injunction on liquidation of entries remains until a final and conclusive court decision); Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1379 (Fed.Cir.2002) (finding that a preliminary injunction dissolves upon issuance of a final and conclusive court opinion); Hosiden Corp. v. Advanced Display Mfrs. Of America, 85 F.3d 589, 591 (Fed.Cir.1996) (“The Court of International Trade does not have discretion to require liquidation before the final decision on appeal.” 19 U.S.C. § 1516a(e) requires that liquidation, once enjoined, remains suspended until there is a “conclusive court decision which decides the matter, so that subsequent entries can be liquidated in accordance with that conclusive decision.” (quoting Timken, 893 F.2d at 342)); Smith Corona Corp. v. United States, 915 F.2d 683, 688 (Fed.Cir.1990) (“suspension is not automatically lifted when the decision of the Court of International Trade is appealed to the Federal Circuit. Suspension of liquidation continues until a ‘conclu sive’ court decision is reached, i.e., a decision that is not subject to further appeal or collateral attack.”). In opposition, Decca asserts that the phrase “final court decision” as used in NTN Bearing, means a final court decision of the Court of International Trade, i.e., a decision for which judgment has issued. Decca makes this claim by relying on decisions interpreting Congress’ use of the phrase “court decision” in Sections 1516a(c)(l) and (e). See, e.g., Smith Corona Corp., 915 F.2d at 688; Timken, 893 F.2d at 340. The question is: To which definition was the NTN Bearing court referring? As noted above, the NTN Bearing court held that “[bjefore a final court decision, therefore, the agency determination governs entry of merchandise.”" } ]

[ { "docid": "17665423", "title": "", "text": "an interest.” Id. Whether the interest claimed amounts to legal title in the United States is irrelevant if it constitutes a cloud on the plaintiffs’ title. See Hatter, 402 F.Supp. at 1194-95. The trial court’s conclusion that the 1939 and 1940 deeds are nullities does not render section 2409a(f) inapplicable. Consequently, we need not decide whether that conclusion is correct. Finally, the trial court erred by holding that plaintiffs’ action could not have accrued before 1971 when the Government finally approved a survey of the disputed land and thereby set forth a definitive title claim. The test for accrual under section 2409a(f) is when “the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” 28 U.S.C. § 2409a(f). Knowledge of the claim’s full contours is not required. All that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff’s. Cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (medical malpractice claim against Government accrues when plaintiff becomes aware of existence of his injury and its probable cause, not when he later learns of its legal significance). Plaintiffs concede, and the trial court found, that in 1958 plaintiffs learned of the Government’s apparent interest when an oil company representative alerted them to what the 1939 and 1940 deeds reflected in the county records. Plaintiffs’ correspondence with BLM official Colton made, or should have made, them aware that the Government did indeed claim an interest in land they believed theirs, and that only Congress could release that interest. Efforts to clear their title via congressional act is an indication they understood this. In view of plaintiffs’ knowledge in 1958, we need not consider what Schoening, plaintiffs’ predecessor in interest, knew or should have known. See e. g., Gendron v. United States, 402 F.Supp. at 47-48. Neither need we decide what notice, if any, the recorded deeds imparted. See, e. g., Amoco Production Co. v. United States, 619 F.2d 1383, 1387-89 (10th Cir. 1980). Plaintiffs’ action accrued by 1958 and thus falls" } ]

[ { "docid": "439222", "title": "", "text": "exception of 28 U.S.C. § 2680(a) does not apply to the Government’s “accumulation, standardization, publication and distribution of inaccurate and misleading symbolic information” in the Wichita sectional chart. Appellants’ Brief at 1-2. We are compelled to disagree. Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the Government’s waiver of sovereign immunity. It therefore poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction. See First National Bank v. United States, 552 F.2d 370, 374 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 875-76 (10th Cir. 1976); cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (time limitation on sovereign’s consent to suit; 28 U.S.C. § 2401(b)); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) (same; 28 U.S.C. § 2409a(f)). Thus, to test the district court’s jurisdictional dismissal, we must determine whether plaintiffs have challenged a “discretionary function or duty.” 28 U.S.C. § 2680(a). But we need not wallow too long in the quagmire of what makes a governmental function discretionary or nondiscretionary, see generally Allnutt v. United States, 498 F.Supp. 832, 835-36 (W.D.Mo.1980); Blessing v. United States, 447 F.Supp. 1160, 1167-85 (E.D.Pa.1978), for we believe plaintiffs’ claim falls squarely within the bar of section 2680(a). Plaintiffs state their claim in terms of the Government’s publishing misleading information on the Wichita sectional chart. In essence, they argue the Government could have avoided ambiguity altogether by providing information on the chart to correlate the longest-runway symbol to the available-lighting symbol. But whatever ambiguity inheres in the chart’s symbols is traceable to the very terms of the specifications as developed by the IACC. See p. 438 supra. If there is a flaw in the chart, it is a flaw in the design of the IACC specifications themselves, for the chart’s symbols are the specifications incarnate. Plaintiffs do not controvert the Government’s contention that it has never undertaken “to indicate on its sectional aeronautical charts which" }, { "docid": "439221", "title": "", "text": "night landing capability shall be indicated by a short dash in lieu of the letter ‘L.’ “(f) The runway length shall be positioned below the airport name following lighting. Runway length shall be the actual length of the longest active runway (pavement, end to end), including displaced thresholds, but excluding those areas designated as overruns. Runway length shall be shown to the nearest 100 feet using 70 as the division point; e. g., 59 shall be used to indicate a runway of 5,870.” Rec., vol. V, at 94-95. The “PAUL WINDLE/2230-L-28” symbols on the Wichita sectional chart are in literal compliance with the quoted specifications. Lights were on sunset to sunrise and the longest runway was 2,800 feet. Nevertheless, plaintiffs contend that the Government should be liable for the chart’s failure to tell pilot Baird that the longest runway to which the “28” symbol referred was not the runway to which the lighting symbol “L” referred, and that the shorter runway was lit for only 2,176 of its 2,580 feet. They argue that the discretionary-function exception of 28 U.S.C. § 2680(a) does not apply to the Government’s “accumulation, standardization, publication and distribution of inaccurate and misleading symbolic information” in the Wichita sectional chart. Appellants’ Brief at 1-2. We are compelled to disagree. Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the Government’s waiver of sovereign immunity. It therefore poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction. See First National Bank v. United States, 552 F.2d 370, 374 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 875-76 (10th Cir. 1976); cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (time limitation on sovereign’s consent to suit; 28 U.S.C. § 2401(b)); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) (same; 28 U.S.C. § 2409a(f)). Thus, to test the district court’s jurisdictional dismissal, we must determine whether plaintiffs have challenged a “discretionary function" }, { "docid": "439226", "title": "", "text": "449, 451-52 (6th Cir. 1980) (TV tower’s ground location depicted inaccurately on chart); Allnutt v. United States, 498 F.Supp. 832, 835 (W.D. Mo.1980) (failure of chart to depict existing power transmission line). Neither is this a situation where use of the wrong lighting symbol caused the chart to expressly contradict conditions on the ground. See, e. g., Murray v. United States, 327 F.Supp. 835, 839, 841 (D.Utah 1971) (chart symbols and other information indicated lighting available throughout night or in any event upon aircraft’s circling field; pilot unable to get lights on even after circling field), aff’d, 463 F.2d 208 (10th Cir. 1972); Sullivan v. United States, 299 F.Supp. 621, 625 (N.D.Ala. 1968) (use of “L” symbol where “*L” called for lead pilot to expect lights on from sunset to sunrise, but when pilot arrived during night flight, he found lights off), aff’d, 411. F.2d 794 (5th Cir. 1969). Finally, we do not have a situation where negligence is confined essentially to the operation of a government facility or enterprise. See, e. g., Indian Towing Co. v. United States, 350 U.S. 61, 62, 76 S.Ct. 122, 123, 100 L.Ed. 48 (1955) (negligent repair and maintenance of government lighthouse); Smith v. United States, 546 F.2d 872, 874-75 (10th Cir. 1976) (negligent failure to post signs to warn of superheated thermal pools in Yellowstone National Park); Yates v. United States, 497 F.2d 878, 882 (10th Cir. 1974) (FAA air controller’s negligent failure, while directing air traffic, to provide adequate separation between aircraft); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 392-98 (9th Cir.) (negligent operation and use of Air Force pilot training procedures that disregarded Air Force regulations), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). The negligence in all these cases did not relate to discretionary or judgmental activities by the Government, so section 2680(a) did not apply. From the last four cases cited above, the dissent concludes that the discretionary-function exception does not cover the IACC’s decision in this case on how detailed to make the runway lighting information in charts such as the Wichita" }, { "docid": "1810523", "title": "", "text": "Bank Securities Litigation, 445 F.Supp. 723, 731 (E.D.N.Y.1978). Assuming, however, that FDA personnel owed a duty to plaintiff’s decedent so as to make the United States potentially liable for FDA negligence, the Court has also determined that the “discretionary function” exception applies here so as to render the government immune from tort liability. 28 U.S.C. § 2680(a). The Supreme Court has stated that where “policy judgment and decision” are involved, discretion for purposes of 28 U.S.C. § 2680(a) is present. Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Plaintiff has argued that FDA personnel negligently allowed xylocaine to remain on the market in a misbranded and adulterated condition. As the gravamen of this allegation is that the FDA failed to withdraw its approval of xylocaine pursuant to 21 U.S.C. § 355(e), it seems clear that discretionary policy judgments are implicated. Thus, to the extent that plaintiff claims the FDA was negligent in approving or failing to withdraw its approval of xylocaine, the activity of the FDA was clearly the type of policy judgment contemplated by 28 U.S.C. § 2680(a). First National Bank in Albuquerque v. United States, 552 F.2d 370 (10th Cir. 1977); Gray v. United States, 445 F.Supp. 337 (S.D.Tex.1978). Moreover, as the collection and reporting of information concerning xylocaine and the enforcement of such regulations are integral components of the approval or withdrawal decisions, this activity must be considered discretionary as well, for otherwise the intent of Congress in carefully enacting 28 U.S.C. § 2680(a) would be undermined. See First National Bank in Albuquerque v. United States, 552 F.2d 370, 377 (10th Cir. 1977). See also Gercey v. United States, 540 F.2d 536 (1st Cir. 1977) (formulation of enforcement policy is discretionary). As the FDA owed no actionable tort duty to plaintiff’s decedent and as the conduct of the FDA involves discretion under 28 U.S.C. § 2680(a), the United States’ motion to dismiss is granted. Other Defendants’ Motions to Dismiss As the remaining defendants are not diverse, the central issue is whether any independent basis of federal jurisdiction exists against any" }, { "docid": "22904147", "title": "", "text": "63 L.Ed.2d 607 (1980), quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Accord, Enfinger v. Enfinger, 452 F.Supp. 553 (M.D.Ga.1978). Where no such consent exists, a district court has no jurisdiction to entertain a suit against the United States. Mitchell, supra, 445 U.S. at 538, 100 S.Ct. 1352. United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969); United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940); Sprouse v. Federal Prison Industries, Inc., 480 F.2d 1, 3 (5th Cir. 1973). The Federal Tort Claims Act is a waiver of the federal government’s immunity for the torts of its employees under certain circumstances. The Act provides that the United States shall be liable for “injury or ... death caused by the negligent or wrongful act or omission of any employer of the Government ... under circumstances where the United States, if a private person, would be liable to the claimant. ...” 28 U.S.C. § 1346(b). This waiver has been construed broadly. See United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 63, 95 L.Ed. 595 (1951). However, this consent to suit is not without exceptions. The Act itself excludes certain types of government action from judicial review. 28 U.S.C. § 2680. More importantly, in Feres v. United States, the Supreme Court held that the Act did not waive immunity for claims brought by servicemen for injuries sustained while on active duty. Dalehite v. United States, 346 U.S. 15, 31, n.25, 73 S.Ct. 956, 965, 97 L.Ed. 1427 n.25 (1953). Courts have uniformly held that where conduct complained of falls within one of the statutory exceptions to the FTCA, the district court is without jurisdiction of the subject matter thereof. See, e. g., First National Bank v. United States, 552 F.2d 370, 374 (10th Cir. 1977), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 876 (10th Cir. 1976); Gibson v. United States, 457 F.2d 1391, 1392 n.1 (3d Cir. 1972); Konecny" }, { "docid": "4933206", "title": "", "text": "or an employee of the Government, whether or not the discretion involved be abused, (emphasis added). Although exceptions to the FTCA are to be narrowly construed, the discretionary function exception “poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.” Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981); First National Bank in Albuquerque v. United States, 552 F.2d 370, 376 (10th Cir.1977); and Smith v. United States, 546 F.2d 872, 877 (10th Cir.1976). If the discretionary function exception is applicable, the provisions of Chapter 171 and section 1346(b) will not apply and the district court must dismiss the case for lack of subject matter jurisdiction. Smith, 546 F.2d at 876 (citing, Morris v. United States, 521 F.2d 872, 875 (9th Cir.1975). In the 1953 case of Dalehite v. United States, 346 U.S. 15, 26, 73 S.Ct. 956, 963, 97 L.Ed. 1427, the United States Supreme Court held that claims against the Government for its negligent planning and handling of shiploads of fertilizer, which had exploded, were barred by the discretionary function exception of § 2680(a). In so holding, the Court defined the limits of the exception as follows: [T]he ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion, (emphasis added). Id. at 35-36, 73 S.Ct. at 967-68. In reaching this definition, the Court also noted: The “discretion” protected by the section is not that of the judge — a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one’s judgment of the best course, a concept of substantial historical ancestry in American law. (emphasis added). Id. at 34, 73 S.Ct. at 967. In applying the discretionary function exception, the Tenth" }, { "docid": "439217", "title": "", "text": "SEYMOUR, Circuit Judge. This is a consolidated appeal after dismissal of a Federal Tort Claims suit under 28 U.S.C. §§ 1346(b), 2671-2680, against the United States for damages that resulted when a small aircraft crashed off the runway at the Paul Windle Airport in Kansas. The claimants are pilot Galen Baird, his employer Capitol Air Service, Inc., and its insurer Vanguard Insurance Co. (collectively “plaintiffs”). They claim that the Government published a misleading aeronautical chart that caused Baird to overestimate the length of a lighted runway on the evening of the crash. The district court dismissed for lack of subject matter jurisdiction after concluding that the chart’s issuance fell within the discretionary-function exception of 28 U.S.C. § 2680(a) , and that sovereign immunity therefore barred the claim. We affirm. The parties do not dispute the material facts. At approximately 9:30 p. m. on July 27,1976, Baird and three passengers flew in Kansas from Ulysses to Greenburg. The group traveled in a Piper Seneca, a small aircraft. In making his landing approach at Greenburg’s Paul Windle Airport, Baird used the Wichita Sectional Aeronautical Chart (16th ed., June 17, 1976). The symbols PAUL WINDLE 2230-L-28 appeared on the chart. According to the chart’s legend, “PAUL WINDLE” symbolized the name of the airport. The “2230” indicated “Elevation in feet [above sea-level].” The “28” described the “Length of longest runway in hundreds of feet.” Finally, the symbol “L” was to be interpreted according to the following legend: “L — Lighting in operation Sunset to Sunrise *L — Lighting available Sunset to Sunrise only on request (by radio call, letter, phone, telegram). (L) — Lighting in operation part of the night and on request, or not operating thereafter. When facility or information is lacking, the respective character is replaced by a dash.” Rec., supp. vol. II. From the sectional chart, then, Baird could infer that runway lights would be on at Paul Windle Airport from sunset to sunrise. And in fact, they were. But Baird inferred, in addition, that the runway lights he saw from the air marked off Paul Windle’s longest runway whose length" }, { "docid": "23477330", "title": "", "text": "Discretionary Function Exception Appellants further assert that the United States is liable for the conduct of the other Customs agents, aside from Maravilla and Dominguez, on duty the day Mitri-Lajam arrived in Puerto Rico. They argue that if said agents had carried out their duties properly and checked Mitri-Lajam when he came through their checkpoint they would have been able to uncover the malicious intentions of Maravilla and Dominguez, and warned Mitri-Lajam as to the danger nearing him. Unfortunately for plaintiffs, while said agents were clearly acting within the scope of their employment at the time Mitri-Lajam was processed by the Customs Service, their duties fall under the discretionary function exception of the Federal Tort Claims Act. 28 U.S.C. § 2680(a). Because the FTCA discretionary function exception is a limitation on the waiver of sovereign immunity, cases which fall within the exception must be dismissed for lack of subject matter jurisdiction. Irving v. United States, 909 F.2d 598, 600 (1st Cir.1990) (citing 28 U.S.C. §§ 1346(b), 2680(a); Wright v. United States, 719 F.2d 1032, 1034 (9th Cir.1983); Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982)). We explain below. The FTCA is a broad waiver of sovereign immunity, granting district courts jurisdiction to hear tort suits against the United States for damages caused by its employees acting within the scope of their employment, where the United States, if a private party, would be liable under the law of the place where the tort occurred. 28 U.S.C. §§ 2674, 1346(b). However, 28 U.S.C. § 2680 establishes fourteen exceptions to 28 U.S.C. § 1346(b). Among the fourteen statutory exceptions to this waiver of immunity is 28 U.S.C. § 2680(a) which exempts [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a" }, { "docid": "23589355", "title": "", "text": "and policies are subject to exceptions. Approval can be given on a project basis to designs not conforming to minimum criteria set forth in the standards and policies listed in 23 C.F.R. § 625.3(a) and (b), where, inter alia, “unusual conditions warrant that exception be made.” 23 C.F.R. § 625.4(b)(3) (1975). The exceptions are subject to the following proviso: The determination to approve a project design that does not conform to the minimum criteria is to be made only after due consideration is given to all project conditions such as maximum service and safety benefits for the dollar invested, compatibility with remaining sections of unimproved roadway, and the probable time before reconstruction of the section due to increased traffic demands... Id. at § 625.4(b)(3) (1975); see also § 625.5(b)(2) (1977) (containing substantially similar language). Ill THE DISCRETIONARY FUNCTION EXCEPTION TO FTCA LIABILITY We begin by noting that the Federal Tort Claims Act (the FTCA) waives sovereign immunity “in sweeping language,” United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523 (1951), and authorizes suit against the United States for negligence “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The broad waiver of sovereign immunity is limited by the discretionary function exception of 28 U.S.C. § 2680(a), inter alia. Exceptions to the FTCA are to be narrowly construed. First Nat. Bank in Albuquerque v. United States, 552 F.2d 370, 376 (10th Cir.1977); Smith v. United States, 546 F.2d 872, 877 (10th Cir.1976). However, the discretionary function exception “poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.” Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981); accord, Smith v. United States, 546 F.2d 872, 875-76 (10th Cir.1976). We have said that “[generally speaking, a duty is discretionary if it involves judgment, planning, or policy decisions. It is not discretionary if it involves enforcement or" }, { "docid": "18731767", "title": "", "text": "the decision whether or not to depict the aerial cable on the Sectional Chart was a “discretionary” act falling within the discretionary function exception of the FTCA. 28 U.S.C. § 2680(a). The United States asserted that the second claim for relief was barred because the United States had not erected, maintained, or owned the cable over its land and therefore had no legal duty under Colorado law to remove it or to warn of its existence. The district court granted summary judgment essentially adopting the arguments of the United States. Plaintiffs appeal the district court’s grant of summary judgment on both claims. I. Claims for money damages against the United States are barred under the doctrine of sovereign immunity except where the Congress has consented to such claims. See generally, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Under section 1346(b) of the FTCA, Congress consented to suits against the United States for money damages “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The Government’s liability under section 1346(b) is limited, however, by section 2680 which enumerates exceptions to the waiver of sovereign immunity under the FTCA. For instance, the doctrine of sovereign immunity continues to bar suits against the Government for certain discretionary acts of its employees. Specifically, under section 2680(a) the Government is immune from claims brought under 1346(b) “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused. ” 28 U.S.C. § 2680(a) (emphasis added). In support of its motion for summary judgment, the United States argued that NOAA employees exercised a discretionary function under section 2680(a) in excluding the Buckskin" }, { "docid": "439223", "title": "", "text": "or duty.” 28 U.S.C. § 2680(a). But we need not wallow too long in the quagmire of what makes a governmental function discretionary or nondiscretionary, see generally Allnutt v. United States, 498 F.Supp. 832, 835-36 (W.D.Mo.1980); Blessing v. United States, 447 F.Supp. 1160, 1167-85 (E.D.Pa.1978), for we believe plaintiffs’ claim falls squarely within the bar of section 2680(a). Plaintiffs state their claim in terms of the Government’s publishing misleading information on the Wichita sectional chart. In essence, they argue the Government could have avoided ambiguity altogether by providing information on the chart to correlate the longest-runway symbol to the available-lighting symbol. But whatever ambiguity inheres in the chart’s symbols is traceable to the very terms of the specifications as developed by the IACC. See p. 438 supra. If there is a flaw in the chart, it is a flaw in the design of the IACC specifications themselves, for the chart’s symbols are the specifications incarnate. Plaintiffs do not controvert the Government’s contention that it has never undertaken “to indicate on its sectional aeronautical charts which runway at every airport has lights, how much of each runway is lit or the length of each runway. It would be virtually impossible to provide all data available for a particular airport with any clarity without causing a clutter situation on the sectional chart.” Rec., vol. I, at 27. For all that plaintiffs have asserted, they seek redress for the IACC’s decision to not require more detailed information on aeronautical charts such as the Wichita sectional chart. Their suit amounts to a challenge of the IACC’s decision on how much possible ambiguity it was willing to tolerate from lack of detail on sectional aeronautical charts, in favor of other policy goals such as chart clarity. The IACC could well have decided that its sectional charts would provide pilots certain minimum information, leaving to the pilot the responsibility of further inquiry for details from other sources available to him. In our view, this is precisely the kind of discretionary judgment that Congress in section 2680(a) meant to shield from suit: “determinations made by executives or" }, { "docid": "23589356", "title": "", "text": "L.Ed. 523 (1951), and authorizes suit against the United States for negligence “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The broad waiver of sovereign immunity is limited by the discretionary function exception of 28 U.S.C. § 2680(a), inter alia. Exceptions to the FTCA are to be narrowly construed. First Nat. Bank in Albuquerque v. United States, 552 F.2d 370, 376 (10th Cir.1977); Smith v. United States, 546 F.2d 872, 877 (10th Cir.1976). However, the discretionary function exception “poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.” Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981); accord, Smith v. United States, 546 F.2d 872, 875-76 (10th Cir.1976). We have said that “[generally speaking, a duty is discretionary if it involves judgment, planning, or policy decisions. It is not discretionary if it involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required.” Jackson v. Kelly, 557 F.2d 735, 737-38 (10th Cir.1977) (en banc). Stated somewhat differently, we have observed “that if a government official in performing his statutory duties must act without reliance upon a fixed or readily ascertainable standard, the decision he makes is discretionary and within the [discretionary function exception]. Conversely, if there is a standard by which his action is measured, it is not within the exception.” Barton v. United States, 609 F.2d 977, 979 (10th Cir.1979) (emphasis added). The requirements, duties and functions imposed by the statutes and regulations involved here lead us to the conclusion that the alleged acts and omissions complained of are within the discretionary function exception of 28 U.S.C. § 2680(a). The statutes and regulations at issue fail to provide a fixed or readily ascertainable standard, and decisions made pursuant to them require more than expert evaluation of a mandatory duty. Cf. Griffin v. United States, 500 F.2d 1059, 1062-65 (3d Cir.1974). From" }, { "docid": "4933205", "title": "", "text": "States, for money damages, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). However, this broad waiver of sovereign immunity is limited in part by the discretionary function exception of 28 U.S.C. § 2680(a). Section 2680(a) provides: The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused, (emphasis added). Although exceptions to the FTCA are to be narrowly construed, the discretionary function exception “poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.” Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981); First National Bank in Albuquerque v. United States, 552 F.2d 370, 376 (10th Cir.1977); and Smith v. United States, 546 F.2d 872, 877 (10th Cir.1976). If the discretionary function exception is applicable, the provisions of Chapter 171 and section 1346(b) will not apply and the district court must dismiss the case for lack of subject matter jurisdiction. Smith, 546 F.2d at 876 (citing, Morris v. United States, 521 F.2d 872, 875 (9th Cir.1975). In the 1953 case of Dalehite v. United States, 346 U.S. 15, 26, 73 S.Ct. 956, 963, 97 L.Ed. 1427, the United States Supreme Court held that claims against the Government for its negligent planning and handling of shiploads" }, { "docid": "1026338", "title": "", "text": "Mathews confirmed that the government safety office could not order Chrysler employees to initiate safety measures, nor did government inspectors have access to the plant to monitor safety without an escort. Mathews testified that the United States had no role in hiring or determining the qualifications of Chrysler’s safety specialists. III. The United States contends that the district court lacked subject matter jurisdiction to consider the case since the Federal Tort Claims Act’s waiver of sovereign immunity does not apply to discretionary acts by government employees. 28 U.S.C. § 2680(a). The district court opinion indicates no ruling on whether the inspection by the government’s employees or the failure to require safety training for railyard workers was a discretionary act depriving the district court of jurisdiction. The United States can be sued only to the extent to which it has waived its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976). While the Federal Tort Claims Act, specifically 28 U.S.C. § 1346(b), generally waives that immunity, 28 U.S.C. § 2680 reserves immunity in specific instances. 28 U.S.C. § 2680(a) provides: The provision of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. If a case falls within the statutory exceptions of 28 U.S.C. § 2680, the court lacks subject matter jurisdiction. Colorado Flying Academy, Inc. v. United States, 724 F.2d 871, 875 (10th Cir.1984); Miller v. United States, 710 F.2d 656, 662 (10th Cir.), cert. denied, — U.S. —, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983); Carlyle v. U.S. Department of Army, 674 F.2d 554, 556 (6th Cir.1982). The Feyers’ claim that the United" }, { "docid": "18598353", "title": "", "text": "(8th Cir.1980); Clayton v. Pazcoquin, 529 F.Supp. 245, 247-49 (W.D.Pa.1981). In the absence of such compliance, a district court has no subject matter jurisdiction over the plaintiff’s claim. Wyler v. United States, 725 F.2d 156, 159 (2d Cir.1983). Plaintiffs’ complaint does not allege that the filing requirements of section 2401(b) were complied with. Moreover, it appears to be conceded that Mrs. Fraticelli did not file a claim for her husband’s death. Because of Mrs. Fraticelli’s failure to file, her complaint against the United States should have been dismissed for lack of jurisdiction. Gallick v. United States, 542 F.Supp. 188, 191 (M.D. Pa. 1982). However, the Government concedes that Oshita and Takatsuki filed» claims, and therefore the complaint could be amended upon remand to allege that fact. Accordingly, we will assume an amendment and address their claims on the merits. A well-recognized exception to the Government’s waiver of immunity for tort liability is the “discretionary function” exception found in 28 U.S.C. § 2680(a). The governmental acts of which the Hawaiian plaintiffs complain fall within this exception. It cannot be seriously contended that the decision to use Agent Orange as a defoliant was anything but a discretionary act. In pursuance of this decision, the Government entered into a contract with the University of Hawaii to perform field tests with the herbicide. Plaintiffs, who claim to have been injured during the course of those field tests, cannot remove them from the category of discretionary functions by vague and irrelevant allegations of negligent labeling, shipping, handling, etc. See Dalehite v. United States, 346 U.S. 15, 37-45, 73 S.Ct. 956, 969-72, 97 L.Ed. 1427 (1953); First National Bank in Albuquerque v. United States, 552 F.2d 370, 374-77 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977). The Supreme Court’s holding in Dalehite is summarized well in United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 810-11, 104 S.Ct. 2755, 2762-63, 81 L.Ed.2d 660 (1984), where Chief Justice Burger, writing for the Court, said: Dalehite involved vast claims for damages against the United States arising" }, { "docid": "439227", "title": "", "text": "Co. v. United States, 350 U.S. 61, 62, 76 S.Ct. 122, 123, 100 L.Ed. 48 (1955) (negligent repair and maintenance of government lighthouse); Smith v. United States, 546 F.2d 872, 874-75 (10th Cir. 1976) (negligent failure to post signs to warn of superheated thermal pools in Yellowstone National Park); Yates v. United States, 497 F.2d 878, 882 (10th Cir. 1974) (FAA air controller’s negligent failure, while directing air traffic, to provide adequate separation between aircraft); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 392-98 (9th Cir.) (negligent operation and use of Air Force pilot training procedures that disregarded Air Force regulations), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). The negligence in all these cases did not relate to discretionary or judgmental activities by the Government, so section 2680(a) did not apply. From the last four cases cited above, the dissent concludes that the discretionary-function exception does not cover the IACC’s decision in this case on how detailed to make the runway lighting information in charts such as the Wichita sectional. In the dissent’s view, the lack of detail here amounts to an actionable breach of duty by the Government to warn of dangers. We do not believe, however, that the breach of duty in the course of the operational activities found actionable in those cases can be properly likened to the IACC’s discretionary design choices challenged here. It is important to note that plaintiff’s challenge goes only to the Wichita chart. And no defect is claimed in that chart apart from the IACC specifications to which it conforms. In actuality, the challenge applies to the design of all sectional charts. Viewed in its essence, plaintiffs’ claim is that the Wichita chart and all others like it should provide more detailed and hence more accurate information. Simply put, plaintiffs challenge the Wichita sectional chart because it was too sketchy. This challenge thus goes to the heart of the IACC’s deliberative and judgmental activities in designing and approving the extent of detail to be included in aeronautical sectional charts versus the extent of detail left to" }, { "docid": "23477331", "title": "", "text": "(9th Cir.1983); Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982)). We explain below. The FTCA is a broad waiver of sovereign immunity, granting district courts jurisdiction to hear tort suits against the United States for damages caused by its employees acting within the scope of their employment, where the United States, if a private party, would be liable under the law of the place where the tort occurred. 28 U.S.C. §§ 2674, 1346(b). However, 28 U.S.C. § 2680 establishes fourteen exceptions to 28 U.S.C. § 1346(b). Among the fourteen statutory exceptions to this waiver of immunity is 28 U.S.C. § 2680(a) which exempts [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. Section 2680 “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” Irving, 909 F.2d at 600 (citing United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984)). Because § 2680(a) is a limitation on the waiver of sovereign immunity, cases which fall within the discretionary function exception must be necessarily dismissed, as a matter of law, for lack of subject matter jurisdiction. The Supreme Court has provided some guidelines to determine whether or not a particular governmental function is discretionary and would come under the discretionary function exemption to the FTCA. “[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764. The Supreme Court has made" }, { "docid": "22904148", "title": "", "text": "been construed broadly. See United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 63, 95 L.Ed. 595 (1951). However, this consent to suit is not without exceptions. The Act itself excludes certain types of government action from judicial review. 28 U.S.C. § 2680. More importantly, in Feres v. United States, the Supreme Court held that the Act did not waive immunity for claims brought by servicemen for injuries sustained while on active duty. Dalehite v. United States, 346 U.S. 15, 31, n.25, 73 S.Ct. 956, 965, 97 L.Ed. 1427 n.25 (1953). Courts have uniformly held that where conduct complained of falls within one of the statutory exceptions to the FTCA, the district court is without jurisdiction of the subject matter thereof. See, e. g., First National Bank v. United States, 552 F.2d 370, 374 (10th Cir. 1977), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 876 (10th Cir. 1976); Gibson v. United States, 457 F.2d 1391, 1392 n.1 (3d Cir. 1972); Konecny v. United States, 388 F.2d 59 (8th Cir. 1967); Sanchez Tapia v. United States, 338 F.2d 416 (2d Cir. 1964); Summers v. United States, 480 F.Supp. 347, 349 (D.Md.1979). We conclude that when a case under the Tort Claims Act falls within the bounds of Feres, a judicially created exception to the Act, the Court likewise has no jurisdiction to hear the case. A federal district court is under a mandatory duty to dismiss a suit over which it has no jurisdiction. Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668, 671-72 (5th Cir. 1978); Rodriquez v. Ritchey, 556 F.2d 1185, 1192 n.30 (5th Cir. 1977) (en banc); Scott v. Abilene Independent School District, 438 F.Supp. 594, 598 (N.D.Ga.1977). When a court must dismiss a case for lack of jurisdiction, the court should not adjudicate the merits of the claim. Durham v. Mason and Dixon Lines, Inc., 404 F.2d 864 (6th Cir. 1968); Guthrie v. Dow Chemical Co., 445 F.Supp. 311, 315 (S.D.Tex.1978). Since the granting of summary judgment is a disposition on the" }, { "docid": "12615912", "title": "", "text": "the United States pay? One would suppose so; but if there is a sovereign-immunity exception to the law of judgments then it need not. Instead the United States could balk, force the plaintiff to sue to enforce the judgment, and assert some additional defense— say, that the administrative claim or suit was untimely under 28 U.S.C. §§ 2401(a) and 2675(a). Because the ftca waives sovereign immunity, each limitation presents a question about the extent of the waiver. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). See also Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). If there is a sovereign-immunity exception to claim preclusion, then the United States could make its timeliness defense in a second suit. And if it .lost that suit, it still could refuse to pay and insist that the plaintiff file a third suit in order to address the discretionary-function exception to liability, 28 U.S.C. § 2680(a), a fourth to overcome the intentional-tort exception, § 2680(h), and so on ad infinitum. At oral argument counsel for the United States candidly conceded that this is a logical consequence of the position the government advances. It is a most unpalatable consequence — likely an unconstitutional one. For it would reduce to advisory status all decisions adverse to the financial interests of the United States. If the United States thinks that it has a new and better argument, it would be free to ignore the judgment and go on as before. That prospect led the Supreme Court to hold that federal courts may not decide veterans’ claims under a statute that left their decisions subject to administrative approval. Hayburn’s Case, 2 U.S. (2 Dall.) 409, 1 L.Ed. 436 (1792). Justice Kennedy worried last spring that permitting a government to raise sovereign immunity for the first time on appeal would allow it “to proceed to judgment without facing any real risk of adverse consequences.” Wisconsin Department of Corrections v." }, { "docid": "22725754", "title": "", "text": "112 L.Ed.2d 666 (1991); see also United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Mr. Muth argued that the cause of action was timely because he acted with due diligence and/or the principle of equitable tolling extended the time in which to file the claim. Nevertheless, the district court stated that the administrative complaint was filed with the Army in July 19, 1991, and thus if plaintiffs claim accrued prior to July 19,1989, his action was barred by the statute of limitations, § 2401(b). I. First, we agree with the district court’s decision to dismiss appellant J.P. Muth from this case for failure to follow the jurisdictional prerequisite for this FTCA action, namely, filing an administrative claim with the appropriate federal agency. See 28 U.S.C. § 2675(a) (1988). The district court found, and this court agrees, that if there are multiple claimants in the matter, each claimant must “individually satisfy the jurisdictional prerequisite of filing a proper claim, unless another is legally entitled to assert such a claim on their behalf.” Frantz v. United States, 791 F.Supp. 445, 447 (D.Del. 1992). Thus appellant J.P. Muth was properly dismissed from this case. II. Second, this court notes that the FTCA is a limited waiver of sovereign immunity. See 28 U.S.C. §§ 2671-2680; Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Among the limitations Congress placed on the consent to suit is the requirement that the plaintiff initially present an administrative claim to an appropriate federal agency within two years of the date the cause of action accrues. The FTCA explicitly provides that a tort claim is “forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues.... ” 28 U.S.C. § 2401(b); see Gould v. United States Dept. of Health and Human Servs., 905 F.2d at 741. For the purposes of section 2401(b), a cause of action accrues when the plaintiff knows, or in the exercise of due diligence, should have known, first, of the existence of the injury," } ]

[ { "docid": "22118914", "title": "", "text": "the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. 266 F.2d at 779. This test does not include the “aid-to-navigation” language which appeared in the McKie test and the early Supreme Court decisions. Explaining the omission, the opinion stated: Our review of the cases shows this test has been watered down until the words have lost their natural meaning.... we attach less importance to either of these catchphrases than we do to the cases piled on cases in which recovery is allowed when by no stretch of the imagination can it be said that the claimant had anything to do with navigation and is a member of the ship’s company only in the sense that his duties have a connection with the mission or the function of the floatable structure where he was injured. Id. at 780. Robison also emphasized that the Supreme Court cases outlined above had already made clear that the status determination was, like any other factual determination, generally to be entrusted to the jury: [The terms “seaman,” “vessel,” and “member of a crew” ] have such a wide range of meaning under the Jones Act as interpreted in the courts, that, except in rare cases, only a jury or trier of facts can determine their application in the circumstances of a particular case. Even where the facts are largely undisputed, the question at issue is not solely a question of law when, because of conflicting inferences that may lead to different conclusions among reasonable men, a trial judge cannot state an unvarying rule of law that fits the facts. 266 F.2d" } ]

[ { "docid": "13594210", "title": "", "text": "to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. Id. at 799 (footnote omitted). Although we have never abandoned the McKie test and have continued to quote it, e.g. Garcia v. Queen, Ltd., 487 F.2d 625, 628 n.6 (5th Cir. 1973), Robison must be regarded as an essential commentary upon that standard in this Circuit. The two-part Robison version was introduced as a threshold test by which a plaintiff could avoid a summary judgment denying him seaman’s status under the Jones Act. However, our subsequent decisions make clear that the Robison test, with its broad concept of seaman’s status, is to be used not only in deciding whether a case goes to the jury in a Jones Act dispute, but also in delimiting the power of the factfinder to deny or confer such status. Thus, in Producers Drilling Co. v. Gray, 361 F.2d 432, 437 (5th Cir. 1966), we relied on Robison in affirming a district judge’s finding, as a matter of law, that a roustabout working on board a submersible drilling barge was a Jones Act seaman. Obviously, the second prong of Robison represents a necessary gloss upon the third prong of McKie, and no factfinder — whether jury or judge — can overlook the implications of Robison in determining a worker’s status. Effectively, “Offshore Co. v. Robison ... established in the Fifth Circuit the test for seaman status under the Jones Act.” Abshire v. Seacoast Products, Inc., 668 F.2d 832, 835 (5th Cir. 1982). Moreover, Robison is fully applicable as a measure of crew" }, { "docid": "10026917", "title": "", "text": "has effected no change on our prior case law. We agree with both contentions. A. “Seaman” status and our established 'precedent We begin by describing two of the principal remedies available to injured workers who ply their trade in connection with the sea: the Jones Act and the Longshore Harbor Workers’ Compensation Act (“LHWCA”). The two Acts are mutually exclusive compensation regimes. Becker v. Tidewater, Inc., 335 F.3d 376, 386 (5th Cir.2003). The Jones Act permits a “seaman” to sue his employer for personal injuries suffered as a result of the employer’s negligence. Park v. Stockstill Boat Rentals, Inc., 492 F.3d 600, 602-03 (5th Cir.2007) (citing 46 U.S.C. § 30104(a)). Such an action allows for potentially unlimited damages and is in contrast to the generally prescribed remedial scheme available to maritime workers under the LHWCA. See Becker, 335 F.3d at 386-87. Congress did not define the term “seaman,” however, and left the courts to decide which maritime employees were covered by the Jones Act. Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). The LHWCA provides the exclusive remedy to land-based workers who fall within its provisions. Id. at 355, 115 S.Ct. 2172. It specifically excludes from its coverage “a master or member of a crew of any vessel.” 33 U.S.C. § 902(3)(G). The Supreme Court has held this exclusion to be a refinement of the term “seaman” under the Jones Act. Chandris, 515 U.S. at 355-56, 115 S.Ct. 2172. Thus, a key requirement for Jones Act coverage is actually found in the LHWCA. Id. Under the Jones Act, a “seaman” is a term of art for an employee whose duties “contribute to the function of the vessel or to the accomplishment of its mission” and who has “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chan-dris, 515 U.S. at 368, 115 S.Ct. 2172 (internal quotation marks and citation omitted); see also Garret v. Dean Shank Drilling Co., 799 F.2d 1007, 1009 (5th Cir.1986) (“The" }, { "docid": "2194097", "title": "", "text": "sufficient connection with water-borne or vessel-related activities to invoke jurisdiction as a seaman under the Jones Act is a mixed question of law and fact.” Holland v. Allied Structural Steel Co., Inc., 539 F.2d 476, 479 (5th Cir.1976), reh’g denied, 542 F.2d 1173, cert. denied, 429 U.S. 1105, 97 S.Ct. 1136, 51 L.Ed.2d 557 (1977); Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959). Because the question of seaman status is a mixed question, it is rare that the answer will be so clear as to be subject to summary judgment or a directed verdict, although it is possible that the question may be one which need not go to a jury. See Bouvier v. Krenz, 702 F.2d 89 (5th Cir.1983). This Circuit has addressed the standards for proof of seaman status many times. A worker claiming seaman status must show: (1)That he is assigned permanently to, or performs a substantial part of his work on, (2) a vessel in navigation and (3) that the capacity in which he is employed, or the duty which he performs, contributes to the function of the vessel or the accomplishment of its mission. Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415 (5th Cir.1986) (citing Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986) (en banc); Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959); McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir.1953)). Based upon this test, we cannot say that it was error for the district court to permit this issue to go to the jury. In fact, on similar facts this circuit has found a painter’s helper not to be a seaman as a matter of law. Callahan v. Fluor Ocean Services, Inc., 482 F.2d 1350 (5th Cir.1973). Taylor also cites as error the district court’s instructions to the jury concerning his seaman status. The district court instructed the jury that, in order to prove seaman status, the plaintiff must meet three tests: (1) he must show that he was doing work on or in connection with a vessel in navigation; (2) his duties must be duties" }, { "docid": "16790778", "title": "", "text": "Cir.1976), reh’g denied, 542 F.2d 1173, cert. denied, 429 U.S. 1105, 51 L.Ed.2d 557 (1977); Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959). Because the question of seaman status is a mixed question, it is rare that the answer will be so clear as to be subject to summary judgment or a directed verdict, although it is possible that the question may be one which need not go to a jury. See Bouvier v. Krenz, 702 F.2d 89 (5th Cir.1983). This Circuit has addressed the standards for proof of seaman status many times. A worker claiming seaman status must show: (1) That he is assigned permanently to, or performs a substantial part of his work on, (2) a vessel in navigation and (3) that the capacity in which he is employed, or the duty which he performs, contributes to the function of the vessel or the accomplishment of its mission. Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415 (5th Cir.1986) (citing Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986) (en banc); Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959); McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir.1953)). Based upon this test, we cannot say that it was error for the district court to permit this issue to go to the jury. In fact, on similar facts this circuit has found a painter’s helper not to be a seaman as a matter of law. Callahan v. Fluor Ocean Services, Inc., 482 F.2d 1350 (5th Cir.1973). Taylor also cites as error the district court’s instructions to the jury concerning his seaman status. The district court instructed the jury that, in order to prove seaman status, the plaintiff must meet three tests: (1) he must show that he was doing work on or in connection with a vessel in navigation; (2) his duties must be duties that contribute to the function of the vessel; and (3) he must have a more or less permanent connection with the vessel. This test, as explained by the district court in his instructions, does not depart substantially from the" }, { "docid": "2181598", "title": "", "text": "subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred.” Conclusion Drilling Rig Number 4 was never a vessel in navigation for its intended purpose, and, therefore, Garret was not a seaman within the meanings of the Jones Act. The LHWCA prohibits Garret from recovering from his employer, Dean Shank, on his general maritime law negligence and unseaworthiness claims. The judgment of the district court is reversed. REVERSED. . Congress has modified the name of the Act by changing \"Longshoremen” to \"Longshore.\" See Longshore and Harbor Workers’ Compensation Act Amendments of 1984. Pub.L. No. 98-426, § 27(d). . Even though we determine that Garret lacked seaman status, this case was still within the district court’s admiralty jurisdiction. We held in Hall v. Hvide Hull No. 3, 746 F.2d 294, 302-03 (5th Cir.1984), cert. denied, — U.S. -, 106 S.Ct. 69, 88 L.Ed.2d 56 (1985), that Congress intended by the 1972 amendments to the LHWCA to preserve within federal admiralty jurisdiction the traditional maritime tort remedy of LHWCA-covered employees for injuries in the course of employment suffered on navigable waters and caused by the negligence of a vessel, broadly defined, while on navigable waters, notwithstanding the new rule of Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), that a maritime connexity as well as a maritime location was thenceforth necessary for admiralty tort jurisdiction and the earlier holdings that shipbuilding is not maritime business. Thames Towboat Co. v. The Schooner Francis McDonald, 254 U.S. 242, 41 S.Ct. 65, 65 L.Ed.245 1920). Garret was covered by the LHWCA. See 33 U.S.C. § 902 and discussion, infra. It is undisputed that at the time of the accident the barge was on navigable waters. The fact that Garret cannot prevail on his negligence claim under section 905(b) of the LHWCA, see infra, does not destroy federal admiralty jurisdiction since the jurisdictional question is separate from the merits of the claim. May v. Transworld Drilling Co., 786 F.2d 1261, 1263 (5th Cir.1986). . Similarly, section" }, { "docid": "13609243", "title": "", "text": "Cir. 1976). Using virtually the same test, the Fifth Circuit has also defined the test to determine seaman status as follows: 1) If there is [sufficient] evidence that the injured workman was assigned permanently to a vessel ... or performed a substantial part of his work on the vessel; and 2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959); See also Billings v. Chevron, U.S.A., Inc., 618 F.2d 1108 (5th Cir. 1980). The district court, in deciding the defendant’s motion for summary judgment, found that there is no dispute that the vessel was in navigation. The district court also stated, recognizing the broad construction given to “aid in navigation”, that it could not as a matter of law find that the inspection and maintenance of the gas pumps aboard the barges and the placing of lights on the barges by a land-based employee could not constitute an aid to navigation. Baker v. Pacific Far East Lines, Inc., 451 F.Supp. 84, 87 (N.D.Calif.1978); Mietla v. Warner Co., 387 F.Supp. 937, 939 (E.D.Pa.1975). The district court found, however, that the appellant failed to present sufficient evidence to raise a jury issue of whether the decedent was permanently connected with or performed a substantial part of his work on any of the vessels. The appellant contends that the district court erred because the determination of whether an injured person was a “seaman” is a jury question. We agree. The question of seaman status within the meaning of the Jones Act is generally a question of fact to be decided by the jury. Luckett v. Continental Engineering Co., 649 F.2d 441 (6th Cir. 1981); see also, Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957). Construing the evidence in a light most favorable" }, { "docid": "10026919", "title": "", "text": "worker is a seaman if he is assigned permanently to a vessel in navigation or performs a substantial part of his work on the vessel, contributing to the function of the vessel or to the accomplishment of its mission.”). The existence of a “vessel” is thus crucial to determining seaman status under the Jones Act. Holmes v. ML Sounding Co., 437 F.3d 441, 446 (5th Cir. 2006). We have long held that the Jones Act analysis requires a watercraft to be “in navigation,” and we have drawn a distinction between completed crafts and crafts that are under construction. A maritime worker “assisting in the building and ultimate commissioning of a launched but uncompleted vessel floating or maneuvering in navigable waters is not a seaman within the meaning of the Jones Act, because his vessel is not yet an instrumentality of commerce — private or public — and is therefore not ‘in navigation.’ ” Williams v. Avondale Shipyards, Inc., 452 F.2d 955, 958 (5th Cir.1971). In Williams, we held that a launched ship conducting sea trials was not “in navigation” because it was not yet being used for its intended purpose. Id. Similarly, in Garret, we held that an offshore drilling rig was not a vessel in navigation because, at the time of the plaintiffs injury, the structure was still undergoing final construction to make it operational as an oil and gas drilling rig. 799 F.2d at 1009. We noted that the structure had never been engaged as an instrument of commerce and held that a “nonmerchant vessel is in navigation if it is engaged in its expected duties on navigable waters.” Id. In the instant case, the CAJUN EXPRESS was still under construction at the time of Cain’s injury. Although the rig was capable of self-propulsion and had run some test pipe, it lacked vital equipment to make it fully operational as an oil and gas drilling rig. Indeed, as Daniel Haslam testified, no drilling contractor would have found the CAJUN EXPRESS fit to drill a deepwater well in the Gulf of Mexico. The CAJUN EXPRESS was not finally completed" }, { "docid": "2181592", "title": "", "text": "a Jones Act seaman, that Dean Shank was negligent, that Drilling Rig Number 4 was unseaworthy, and that all of Garret’s damages were caused by Dean Shank. The jury awarded $150,000 in damages. The district court rendered judgment on the verdict in favor of Garret against Dean Shank for $150,000. Dean Shank moved for judgment notwithstanding the verdict and a new trial. The district court denied Dean Shank’s post-trial motions, ruling that Garret was entitled to recover as a Jones Act seaman, though not under section 905(b) of the LHWCA. Dean Shank brings this appeal. Discussion Dean Shank challenges the jury finding that Garret was a seaman within the meaning of the Jones Act. While the question of seaman status under the Jones Act is usually a question of fact for the jury, it can be decided as a matter of law where the facts show beyond question the lack of seaman status. Reynolds v. Ingalls Shipbuilding, 788 F.2d 264, 267 (5th Cir.1986); Barrett v. Chevron USA, 781 F.2d 1067, 1074 (5th Cir.1986). Sitting en banc in Barrett, we recently reviewed the principles related to determining seaman status and set forth a test for when a worker is a seaman within the meaning of the Jones Act. The worker is a seaman if he is assigned permanently to a vessel in navigation or performs a substantial part of his work on the vessel, contributing to the function of the vessel or to the accomplishment of its mission. Barrett, supra at 1072-74. We have defined a vessel as “in navigation” when the vessel is “engaged in an instrument of commerce and transportation on navigable waters.” Williams v. Avondale Shipyard, Inc., 452 F.2d 955, 958 (5th Cir.1971). A nonmer-chant vessel is in navigation if it is engaged in its expected duties on navigable waters. Id. In this ease, the vessel, Drilling Rig Number 4, was not in navigation for its intended purpose. Before the barge could operate as a drilling rig, it needed the addition of living quarters, a derrick, navigational lights, and other accoutrements. In a virtually identical case, Hollister v." }, { "docid": "8157901", "title": "", "text": "Offshore Services, Inc., 809 F.2d 1192, 1194 (5th Cir.1987) (worker who performed work on fifteen vessels belonging to ten different owners not a seaman). We have also refused to extend seaman status to a variety of workers who undeniably faced the perils of the sea but who worked on a structure that did not qualify as a “vessel.” See Reynolds v. Ingalls Shipbuilding Div., Litton, 788 F.2d 264, 267 (5th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 253 (1986) (ship on sea trials not a vessel “in navigation,” and therefore those working aboard ship during sea trials not seamen); Reeves v. Offshore Logistics, Inc., 720 F.2d 835, 836-37 (5th Cir.1983) (helicopter not a vessel and therefore offshore helicopter pilot not a seaman). Similarly, we have not granted seaman status to workers who performed the work usually or traditionally done by seamen but who lacked connection to a vessel or fleet of vessels. To the contrary, we have always required those workers performing traditional maritime functions to satisfy the vessel connection test. In Fazio v. Lykes S.S. Co., Inc., 567 F.2d 301 (5th Cir.1978), we denied seaman status to a shoregang worker who performed traditional seaman’s work but who lacked the requisite vessel connection. Similarly, in White v. Valley Line Co., 736 F.2d 304 (5th Cir.1984), we refused to grant seaman status to an injured fleetman at a barge fleeting facility who spent almost all of his time aboard various barges doing seaman-type work — handling tow lines, and cleaning and repairing barges — but who could not show connection to a vessel or identifiable fleet of vessels. Thus, to grant Bach an exemption from establishing connection to a particular vessel or fleet of vessels would be inconsistent with a long list of cases from this court. Granting Bach an exception to the vessel connection requirement would also draw us farther away from other circuits. Although Robison and Barrett only require the worker to establish that he aided in the accomplishment of the mission of the vessel, several other circuits adhere to the narrower “aid in navigation”" }, { "docid": "4728592", "title": "", "text": "ORDER KENT, District Judge. Before the Court is the Motion for Summary Judgment of Defendant Magnum Construction Services, Inc. For the reasons set forth below, the Court DENIES this motion. This case arises out of the injuries the Plaintiff allegedly suffered while working as a welder on the drill ship DISCOVERER 534 (“D534”). The two accidents that caused these injuries occurred while the D534 was undergoing substantial repairs for damage caused by an explosion and fire that nearly sunk the vessel. The Plaintiff filed suit under the Jones Act and general maritime law against: his employer, Magnum Construction Services, Inc. (“Magnum”); the owners of the drill ship, Sonat Offshore Drilling, Inc. and Sonat, Inc.; and, the company for whom the D534 performed drilling services, B.P. Exploration, Inc. Magnum’s Motion for Summary Judgment seeks to have the Plaintiffs Jones Act and maritime claims dismissed on the ground that the Plaintiff cannot bring an action under the Jones Act or general maritime law because, as a matter of law, the Plaintiff is not a seaman. A worker is considered a seaman if (1) the worker was permanently assigned to, or performed substantial work on, a vessel in navigation; and (2) the worker contributed to the function of the vessel or the accomplishment of its purpose. See, e.g., Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073 (5th Cir.1986). Magnum claims that the Plaintiff was not a seaman because the D534 was not in navigation when the Plaintiff suffered his injuries. Magnum primarily bases this claim upon the fact that the accidents which caused the Plaintiffs injuries occurred while the D534 was performing sea trials. To support this assertion, Maghum cites Williams v. Avondale Shipyards, Inc., 452 F.2d 955 (5th Cir.1971), and Reynolds v. Ingalls Shipbuilding Division, Litton Systems, Inc., 788 F.2d 264 (5th Cir.1986). In both of these cases, the Fifth Circuit unequivocally held that a ship “undergoing sea trials is not ‘in navigation’ for purposes of the Jones Act.” Reynolds, 788 F.2d at 267. However, the Court is not prepared to render summary judgment on this issue. Despite Magnum’s claims to" }, { "docid": "2181594", "title": "", "text": "Luke Construction Co., 517 F.2d 920 (5th Cir.1975), we held that a bare-hull barge upon which a drilling rig and living quarters were being constructed was not in navigation. Garret argues that Hollister is distinguishable because the barge in Hol-lister had not yet been delivered to its final owner, whereas here the builder, Delta, had delivered the barge to its ultimate user, Dean Shank. We find this distinction to be unpersuasive. So long as a vessel has never been in navigation for its intended use, we do not think the determination of seaman status should turn on who is completing the construction of the vessel. The pivotal question is whether the vessel has been placed in navigation for its intended purpose. In Williams, supra, we held that a launched vessel conducting sea trials could not be considered “in navigation” because it was not yet being used for its intended purpose. The crucial factor in Williams was not that the ship had not been delivered to the owner, but that the very activity in which it was engaged, sea trials, showed that it was not in use for its intended purpose. Garret also relies on our holding in Fredieu v. Rowen Companies, Inc., 738 F.2d 651 (5th Cir.1984), in which we upheld a district court’s finding of fact that a drilling rig was not a vessel in navigation. Garret cites the case for the proposition that whether a vessel is in navigation is a factual question. As we stated in Fredieu, except for rare instances, the question of whether a vessel is in navigation is a question of fact. This case, however, is one of those rare instances where the facts are such that we can determine as a matter of law that the vessel was not in navigation. See Williams, supra, at 958. The factual setting of Fredieu supports our decision that Drilling Rig Number 4 was not in navigation. The barge in Fredieu was much nearer completion as a drilling rig than Drilling Rig Number 4, having its navigational lights, an operating generator, lighting, plumbing, a galley, living quarters," }, { "docid": "10026918", "title": "", "text": "132 L.Ed.2d 314 (1995). The LHWCA provides the exclusive remedy to land-based workers who fall within its provisions. Id. at 355, 115 S.Ct. 2172. It specifically excludes from its coverage “a master or member of a crew of any vessel.” 33 U.S.C. § 902(3)(G). The Supreme Court has held this exclusion to be a refinement of the term “seaman” under the Jones Act. Chandris, 515 U.S. at 355-56, 115 S.Ct. 2172. Thus, a key requirement for Jones Act coverage is actually found in the LHWCA. Id. Under the Jones Act, a “seaman” is a term of art for an employee whose duties “contribute to the function of the vessel or to the accomplishment of its mission” and who has “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chan-dris, 515 U.S. at 368, 115 S.Ct. 2172 (internal quotation marks and citation omitted); see also Garret v. Dean Shank Drilling Co., 799 F.2d 1007, 1009 (5th Cir.1986) (“The worker is a seaman if he is assigned permanently to a vessel in navigation or performs a substantial part of his work on the vessel, contributing to the function of the vessel or to the accomplishment of its mission.”). The existence of a “vessel” is thus crucial to determining seaman status under the Jones Act. Holmes v. ML Sounding Co., 437 F.3d 441, 446 (5th Cir. 2006). We have long held that the Jones Act analysis requires a watercraft to be “in navigation,” and we have drawn a distinction between completed crafts and crafts that are under construction. A maritime worker “assisting in the building and ultimate commissioning of a launched but uncompleted vessel floating or maneuvering in navigable waters is not a seaman within the meaning of the Jones Act, because his vessel is not yet an instrumentality of commerce — private or public — and is therefore not ‘in navigation.’ ” Williams v. Avondale Shipyards, Inc., 452 F.2d 955, 958 (5th Cir.1971). In Williams, we held that a launched ship conducting sea trials" }, { "docid": "2181595", "title": "", "text": "was engaged, sea trials, showed that it was not in use for its intended purpose. Garret also relies on our holding in Fredieu v. Rowen Companies, Inc., 738 F.2d 651 (5th Cir.1984), in which we upheld a district court’s finding of fact that a drilling rig was not a vessel in navigation. Garret cites the case for the proposition that whether a vessel is in navigation is a factual question. As we stated in Fredieu, except for rare instances, the question of whether a vessel is in navigation is a question of fact. This case, however, is one of those rare instances where the facts are such that we can determine as a matter of law that the vessel was not in navigation. See Williams, supra, at 958. The factual setting of Fredieu supports our decision that Drilling Rig Number 4 was not in navigation. The barge in Fredieu was much nearer completion as a drilling rig than Drilling Rig Number 4, having its navigational lights, an operating generator, lighting, plumbing, a galley, living quarters, and personnel aboard the rig, and yet the district court found that the rig in Fredieu was not in navigation. The evidence in this case clearly establishes that Drilling Rig Number 4 was never in navigation for its intended purpose, and, therefore, the first criteria of the seaman test fails. Without a vessel “in navigation” there can be no Jones Act coverage. Reynolds, supra, at 267. In his petition, Garret also claimed damages for negligence under the general maritime law, and the jury returned a verdict for Garret on this issue. Garret’s negligence claim must fail, however, because he is covered under the LHWCA, which covers harbor workers engaged in shipbuilding on navigable waters of the United States. 33 U.S.C. §§ 902(3) & (4). As he is not a seaman, Garret is not within the LHWCA’s exclusion of a “member of a crew of any vessel.” 33 U.S.C. § 902(3)(G). It is uncontroverted that Drilling Rig Number 4 was on navigable waters of the United States and that Garret was involved in shipbuilding. Since Garret" }, { "docid": "4728593", "title": "", "text": "is considered a seaman if (1) the worker was permanently assigned to, or performed substantial work on, a vessel in navigation; and (2) the worker contributed to the function of the vessel or the accomplishment of its purpose. See, e.g., Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1073 (5th Cir.1986). Magnum claims that the Plaintiff was not a seaman because the D534 was not in navigation when the Plaintiff suffered his injuries. Magnum primarily bases this claim upon the fact that the accidents which caused the Plaintiffs injuries occurred while the D534 was performing sea trials. To support this assertion, Maghum cites Williams v. Avondale Shipyards, Inc., 452 F.2d 955 (5th Cir.1971), and Reynolds v. Ingalls Shipbuilding Division, Litton Systems, Inc., 788 F.2d 264 (5th Cir.1986). In both of these cases, the Fifth Circuit unequivocally held that a ship “undergoing sea trials is not ‘in navigation’ for purposes of the Jones Act.” Reynolds, 788 F.2d at 267. However, the Court is not prepared to render summary judgment on this issue. Despite Magnum’s claims to the contrary, Williams and Avondale are not completely on point with the facts of the instant ease. In both Williams and Avondale, the ships upon which the plaintiffs were injured were newly constructed vessels. An examination of the rationale set out in these decisions leads this Court to conclude that this distinction is crucial. Consider this statement made in Williams: A shipbuilder’s worker assisting in the building and ultimate commissioning of a launched but uncompleted vessel floating or maneuvering in navigable waters is not a seaman within the meaning of the Jones Act, because his vessel is not yet an instrumentality of commerce — private or public — and is therefore not “in navigation.” Williams, 452 F.2d at 958 (emphasis added). The Fifth Circuit’s heavy reliance on the fact that the ships in Williams and Reynolds were brand new precludes this Court from totally relying on these cases. In the Court’s mind, the sea trial exception to the Jones Act only applies to newly constructed vessels. The D534 was not a newly constructed vessel but" }, { "docid": "16720893", "title": "", "text": "trial court denied all motions for directed verdict and permitted all issues— status, liability and quantum — to go to the jury. The jury, in a special verdict, concluded that the Barge ERIS was not a vessel in navigation, that Mr. Colomb was not a seaman, that his injuries had been proximately caused by his own negligence (90%), as well as that of Texaco (10%), and fixed total damages at $50,000. All post-trial motions were denied and both sides appealed. Three issues are presented by this appeal: (1) whether the trial court erred in denying plaintiff’s motion for a directed verdict on the status issue; (2) if so, whether the jury applied the appropriate standard for negligence and contributory negligence; and (3) whether the trial court erred in disallowing evidence on inflation. II Colomb contends that the Barge ERIS is a vessel in navigation as a matter of law, he was a seaman and the trial court erred in denying Colomb’s motion for a directed verdict on the status issue. We agree. This circuit’s test for seaman status for oilfield workers working on navigable waters was enunciated in the seminal case of Offshore Company v. Robison, 266 F.2d 769, 779 (5th Cir.1959), and requires the satisfaction of two conditions: (1) permanent assignment to a vessel and (2) performance of duties-which contribute to the function or mission of the vessel. The court defined the type “vessel” contemplated in the first requirement as follows: “(including special purpose structures not usually employed as a means of transport by water but designed to float on water).” The only element in serious dispute is whether the Barge ERIS is a vessel. The standard for determining whether a special purpose craft is a vessel under the Jones Act, is consideration of the purpose for which the craft is constructed and the business in which it is engaged. Barrios v. Engine and Gas Compressor Services, Inc., 575 F.2d 1140, 1142 (5th Cir.1978). The Barge ERIS was constructed for the purpose of going to various drilling locations to drill or work over oil and gas wells. It was" }, { "docid": "2181593", "title": "", "text": "banc in Barrett, we recently reviewed the principles related to determining seaman status and set forth a test for when a worker is a seaman within the meaning of the Jones Act. The worker is a seaman if he is assigned permanently to a vessel in navigation or performs a substantial part of his work on the vessel, contributing to the function of the vessel or to the accomplishment of its mission. Barrett, supra at 1072-74. We have defined a vessel as “in navigation” when the vessel is “engaged in an instrument of commerce and transportation on navigable waters.” Williams v. Avondale Shipyard, Inc., 452 F.2d 955, 958 (5th Cir.1971). A nonmer-chant vessel is in navigation if it is engaged in its expected duties on navigable waters. Id. In this ease, the vessel, Drilling Rig Number 4, was not in navigation for its intended purpose. Before the barge could operate as a drilling rig, it needed the addition of living quarters, a derrick, navigational lights, and other accoutrements. In a virtually identical case, Hollister v. Luke Construction Co., 517 F.2d 920 (5th Cir.1975), we held that a bare-hull barge upon which a drilling rig and living quarters were being constructed was not in navigation. Garret argues that Hollister is distinguishable because the barge in Hol-lister had not yet been delivered to its final owner, whereas here the builder, Delta, had delivered the barge to its ultimate user, Dean Shank. We find this distinction to be unpersuasive. So long as a vessel has never been in navigation for its intended use, we do not think the determination of seaman status should turn on who is completing the construction of the vessel. The pivotal question is whether the vessel has been placed in navigation for its intended purpose. In Williams, supra, we held that a launched vessel conducting sea trials could not be considered “in navigation” because it was not yet being used for its intended purpose. The crucial factor in Williams was not that the ship had not been delivered to the owner, but that the very activity in which it" }, { "docid": "16790777", "title": "", "text": "seaman status pursuant to 46 U.S.C. § 688 (1986). The jury determined that Taylor was not a seaman for purposes of the Jones Act at the time of the accident. Taylor claims not only that the district court's instructions to the jury were incorrect as a matter of law, but also that the court erred in not finding that he is a seaman as a matter of law. Taylor was an employee of LOS as a part of the sandblasting and painting crew assigned to work on Chevron’s “CM” platform. It is undisputed that the painting crew was housed on the STAR II but there is no evidence to indicate that the sandblasting and painting crew had any responsibilities with respect to the operation or maintenance of the STAR II. “The determination whether a claimant has proved a sufficient connection with water-borne or vessel-related activities to invoke jurisdiction as a seaman under the Jones Act is a mixed question of law and fact.” Holland v. Allied Structural Steel Co., Inc., 539 F.2d 476, 479 (5th Cir.1976), reh’g denied, 542 F.2d 1173, cert. denied, 429 U.S. 1105, 51 L.Ed.2d 557 (1977); Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959). Because the question of seaman status is a mixed question, it is rare that the answer will be so clear as to be subject to summary judgment or a directed verdict, although it is possible that the question may be one which need not go to a jury. See Bouvier v. Krenz, 702 F.2d 89 (5th Cir.1983). This Circuit has addressed the standards for proof of seaman status many times. A worker claiming seaman status must show: (1) That he is assigned permanently to, or performs a substantial part of his work on, (2) a vessel in navigation and (3) that the capacity in which he is employed, or the duty which he performs, contributes to the function of the vessel or the accomplishment of its mission. Smith v. Odom Offshore Surveys, Inc., 791 F.2d 411, 415 (5th Cir.1986) (citing Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986) (en" }, { "docid": "9862351", "title": "", "text": "too deep for a liftboat operation. This fact is not material to our analysis, however, as seaman status must be determined by examining the claimant’s overall employment-related connection to a vessel in navigation rather than focusing only on the facts at the time of injury. Chandris, 515 U.S. at 363, 115 S.Ct. 2172; Barrett, 781 F.2d at 1075 (citing Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir.1980)). . 182 F.3d 340 (5th Cir.1999). . Id. at 345. . 182 F.3d at 347. . Id. . See e.g., Coats v. Penrod Drilling Corp., 5 F.3d 877 (5th Cir.1993) (denying seaman status to claimant as a matter of law because the vessels claimant worked aboard were not under common ownership or control); Bach v. Trident Steamship Co., Inc., 920 F.2d 322 (5th Cir.1991) (ships navigated by compulsory pilot not a fleet merely because each vessel was under pilot's control at the time he navigated them); Langston v. Schlumberger Offshore Serv., Inc., 809 F.2d 1192 (5th Cir.1987) (wireline operator not a seaman where employee was assigned to fifteen different vessels owned by ten owners). . 700 F.2d 240 (5th Cir.1983) (reversing grant of summary judgment denying seaman status to anchorhandlers where vessels employees worked aboard were all used, but not owned or chartered by their employer). . 700 F.2d at 245. . Buras, 736 F.2d at 311 (\"Our concern [in Bertrand] was to prevent the denial of Jones Act seaman status as a matter of law to those claimants who are engaged in traditional maritime activity on a vessel or vessels comprising an identifiable fleet in every respect except common control or ownership.”). . 736 F.2d at 311 (\"[W]e [do not] believe that Bertrand rejected the identifiable or recognizable fleet requirement established by our prior cases. Rather, Bertrand must be read in light of the factual situation it involved.”) (footnote omitted); Bach, 920 F.2d at 326 (\"Dozens (perhaps hundreds) of seaman status cases have come before us, but we have never made an exception to the core requirement that the injured worker show attachment to a vessel or identifiable fleet of" }, { "docid": "8961738", "title": "", "text": "liable under section 5(b). Lyons appeals complaining of the directed verdict against her on seaman status for Jones Act purposes and of various asserted trial errors. We sustain Kerr-McGee’s appeal and reject Lyons’. Discussion 1. Seaman Status Lyons sought to establish that she was a Jones Act seaman. Determining seaman status is “an inherently factual question” and thus is “generally a question for the fact-finder.” Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir.1986) (en banc). Nonetheless, if the requisite proof is absent, a court may decide that seaman status is lacking as a matter of law. Id. at 1074; White v. Valley Line, Co., 736 F.2d 304, 305 (5th Cir.1984); Wallace v. Oceaneering International, 727 F.2d 427, 432 (5th Cir.1984); Dove v. Belcher Oil Co., 686 F.2d 329, 334 (5th Cir.1982). A trial court may “enter a directed verdict where the record demonstrates that reasonable persons could not draw conflicting inferences which might lead to another conclusion.” Theriot v. Bay Drilling Corp., 783 F.2d 527, 532 (5th Cir.1986). The decisional developments leading to this Circuit’s test for seaman status have been described on many occasions, and we will not retrace that history here. See generally Barrett, 781 F.2d at 1069-74; Robertson, A New Approach to Determining Seaman Status, 64 Texas L.Rev. 79 (1985). Seaman status is a jury question if there is evidence that (1) the plaintiff was “as signed permanently to a vessel ... or performed a substantial part of his work on the vessel,” and (2) the work he performed assisted the vessel in accomplishing its mission or contributed to the function or maintenance of the vessel. Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959) (emphasis added). Barrett reaffirmed Robison and made clear that under the first prong we must examine the entire course of the plaintiffs employment, not just the particular responsibilities he carried at the time of injury. 781 F.2d at 1076. See also In re Patton-Tully Transportation Co., 797 F.2d 206, 210 (5th Cir.1986). Based on the evidence presented, there is no reasonable basis on which a jury could have" }, { "docid": "13609242", "title": "", "text": "suffer personal injury in the course of his employment may ... maintain an action for damage at law ...; and in case of the death of any seaman as a result of such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury.” Although the Act does not define the term “seaman”, the Sixth Circuit has stated that in determining whether a particular employee is a “seaman” the following test shall be applied: 1) is the vessel in navigation, 2) does the employee have a more or less permanent connection with the vessel, and 3) was the employee on board the vessel primarily in aid of navigation? Nelson v. Greene Line Steamers, 255 F.2d 31, 33 (6th Cir.), cert. denied, 358 U.S. 867, 79 S.Ct. 100, 3 L.Ed.2d 100 (1958); See also Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir.), reh. en banc denied, 616 F.2d 568 (1980). Whittington v. Sewer Construction Co., Inc., 541 F.2d 427 (4th Cir. 1976). Using virtually the same test, the Fifth Circuit has also defined the test to determine seaman status as follows: 1) If there is [sufficient] evidence that the injured workman was assigned permanently to a vessel ... or performed a substantial part of his work on the vessel; and 2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips. Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959); See also Billings v. Chevron, U.S.A., Inc., 618 F.2d 1108 (5th Cir. 1980). The district court, in deciding the defendant’s motion for summary judgment, found that there is no dispute that the vessel was in navigation. The district court also stated, recognizing the broad construction given to “aid in navigation”, that it could not as a matter of law find that" } ]

[ { "docid": "6937272", "title": "", "text": "district court denied BSDL’s motion to suspend and its subsequent motions to clarify. By minute order of October 12, 2010, the district court granted Belize’s motion to stay the petition to confirm “pending resolution of the parties’ case before the Belize Supreme Court.” BSDL appeals the stay order or, in the alternative, if the order is not final, requests that its appeal be treated as a petition for a writ of mandamus. II. This court has treated an attempted appeal as an application for a writ of mandamus, and granted effective relief, where a “stay order as issued exceeded the proper exercise of authority of the District Court.” Dellinger v. Mitchell, 442 F.2d 782, 782 (D.C.Cir.1971); see id. at 788-89; cf. Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 548-49 & n. 6 (D.C.Cir.1992) (citing Sierra Rutile Ltd. v. Katz, 937 F.2d 743, 749 (2d Cir.1991); Beard v. Carrollton R.R., 893 F.2d 117, 120 (6th Cir.1989)). Given the “carefully crafted framework for the enforcement of international arbitration awards” TermoRio, 487 F.3d at 935, presented in the FAA and the New York Convention, it is evident that the stay order as issued exceeded the proper exercise of authority of the district court. “The traditional use of the writ [of mandamus] in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); see Cheney v. Disk Court for Disk of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Because the writ, see 28 U.S.C. § 1651(a), is a “ ‘drastic and extraordinary’ remedy,” Cheney, 542 U.S. at 380, 124 S.Ct. 2576 (quoting Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947)), “only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify [its] invocation,” id. (citations" } ]

[ { "docid": "20499189", "title": "", "text": "the award. The Award, therefore, became final, binding, and non-appealable under Honduran Law as of September 15, 2009 .... Since that date, the Award could not be set aside, annulled or vacated in Honduran courts. Stay Brief at 15 (internal footnotes and citations omitted) (emphasis added); see also Stay Brief, Ex. 28, Honduran Law of Conciliation and Arbitration Art. 73 (“A motion to vacate the arbitration award may only be filed within seven (7) days following the notice of the decision or order whereby the award is clarified, corrected, or supplemented.”); id. art. 75 (“The court of appeals or the arbitration tribunal shall categorically deny a motion to vacate when it is clear that it was untimely filed[.]”). The Republic has not contested DRC’s description. It is undisputed that the arbitration award was rendered on September 8, 2009. See DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 70; see also Petition for Confirmation of Foreign Arbitration Award, Ex. E at 2 [Dkt. No. 1-3]. The Republic’s own declarants have acknowledged that it was not until February 19, 2010 — over five months after the award was rendered and therefore well past the deadline under Honduran law to file a motion to vacate — that “FHIS filed an opposition to the application of DRC [for recognition and enforcement of the award] and requested that recognition and enforcement of the arbitral award be refused.” Respondent’s Mot. to Stay, Declaration of Engineer Juan Jose Urquiza (“Urquiza Decl.”) ¶ 13, May 12, 2010 [Dkt. No. 11-14]; see also Urquiza Deck, Attachment 4, FHIS Opposition Before Honduran Supreme Court of Justice at 15, Feb. 19, 2010. Consequently, as the court of appeals made clear in BSDL, because neither the Republic nor FHIS filed an application for the setting aside or suspension of the arbitration award in Honduras, this Court has no authority to postpone enforcement of the award under Article VI of the Inter-American Convention. See BSDL, 668 F.3d at 733. B. Inherent Authority in the Interest of Judicial Economy Applying the framework set forth by the Supreme Court in Landis v. North American" }, { "docid": "20499191", "title": "", "text": "Co., the Court concludes that the March 28, 2011 stay is indefinite in length, and that the Republic has failed to satisfy its burden of proving that the stay is justified by any pressing need. The court of appeals in BSDL held that a district court abuses its discretion when it invokes its inherent authority to enter a stay of indefinite duration in the absence of a pressing need. See BSDL, 668 F.3d at 731-32 (citing Landis v. North Am. Co., 299 U.S. at 255, 57 S.Ct. 163). In BSDL, the district court granted a motion to stay a petition to confirm an arbitration award “pending resolution of the parties’ case before the Belize Supreme Court,” id. at 729, and the court of appeals concluded that such a stay “as issued is sufficiently indefinite to require a finding of pressing need under Landis.” Id. at 732. The stay in this case is essentially identical to the one issued in BSDL. Here, the Court stayed this case “in light of the pendency of the prior, parallel action currently before the Honduran Supreme Court, DRC, Inc. v. Fondo Hondureno de Inversión Social, Case No. 301-2009.” DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 73. While the Court also required the parties to file status reports every 60 days and to advise the Court of any information that would warrant lifting the stay, see Order at 1, Mar. 28, 2011, under BSDL the stay is effectively indefinite. “[A] district court’s issuance of an indefinite stay order must be supported by ‘a balanced finding that such need overrides the injury to the party being stayed.’ ” BSDL, 668 F.3d at 732 (quoting Dellinger v. Mitchell, 442 F.2d at 787). The burden is on the movant — here, the Republic — to “make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which [it] prays will work damage to some one else.” Landis v. North Am. Co., 299 U.S. at 255, 57 S.Ct. 163. The Court carefully has" }, { "docid": "20499176", "title": "", "text": "OPINION AND ORDER PAUL L. FRIEDMAN, United States District Judge This matter is before the Court on the motion of petitioner, DRC, Inc., to lift the stay imposed by the Court in its March 28, 2011 Order, or, in the alternative, to order respondent, the Republic of Honduras, to provide security. The Republic of Honduras opposes DRC’s motion. After briefing on DRC’s motion was complete, the United States Court of Appeals for the District of Columbia Circuit issued its decision in Belize Social Development Ltd. v. Government of Belize (“BSDL”), 668 F.3d 724 (D.C.Cir.2012). Because the court of appeals’ decision in BSDL is directly relevant to DRC’s pending motion, the Court, on its own initiative, ordered the parties to submit supplemental briefing, which now is complete. Upon consideration of the parties’ papers, the relevant legal authorities, and the entire record in this case, the Court will grant DRC’s motion to lift the stay, will vacate the Court’s March 28, 2011 Order imposing a stay on this case in its entirety, will deny as moot DRC’s alternative request for security, and will order supplemental briefing. I. BACKGROUND The Court previously has described the background of this case. See DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d 66, 67-71 (D.D.C.2011); see also Memorandum Op. & Order at 1-3, Jan. 17, 2012 [Dkt. No. 88]. It therefore will limit its discussion accordingly. This is an action to enforce a foreign arbitration award rendered in the Republic of Honduras by Honduran arbitrators under Honduran law. The underlying dispute in this ease arises out of a construction contract between DRC and the Fondo Hondureno de Inversión Social (“FHIS”) — an instrumentality of the Republic of Honduras — under which DRC agreed to construct certain water and wastewater sub-projects in Honduras. DRC demanded arbitration with FHIS, and ultimately an arbitration award was rendered against FHIS on September 8, 2009 that required FHIS to pay DRC over $51 million. On January 5, 2010, DRC filed a petition in this Court for confirmation of that arbitration award against the Republic of Honduras. On March 28, 2011, the Court" }, { "docid": "20499184", "title": "", "text": "at least as they are susceptible of prevision and description,” and “an order which is to continue by its terms for an immoderate stretch of time is not to be upheld as moderate because conceivably the court that made it may be persuaded at a later time to undo what it has done.” Id. at 257, 57 S.Ct. 163. Underlying the Court’s analysis was a recognition that “[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.” Id. at 255, 57 S.Ct. 163. BSDL, 668 F.3d- at 731-32 (alteration in original) Under the court of appeals’ decision in BSDL, the Court concludes (1) that it has no authority to stay this case under Article VI of the Inter-American Convention; and (2) that the Republic of Honduras has failed to meet its burden of justifying any pressing need in favor of a stay. Therefore, the stay in this case must be vacated. A. Action to Annul or Suspend the Arbitration Award DRC has established that neither the Republic nor FHIS in fact filed an action in Honduras to annul or suspend the arbitration award rendered against FHIS. See Stay Brief at 15-16, 22-23; see also DRC Supp. Reply at 5-6. The Republic previously stated in filings with Case l:10-cv-00003-PLF Document 100 Filed 06/11/12 Page 7 of 12 the Court that an application for setting aside or suspension of the .award had been filed in Honduras. See, e.g., Respondent’s Mot. to Stay at 15, May 14, 2010 [Dkt. No. 11] (“Under the Conventions, a district court may be acting improvidently by enforcing an award prior to the completion of the foreign proceedings where a parallel action to set aside or modify an award is proceeding in a country of primary jurisdiction, like the prior Honduras action in the case at bar.”) (quotations omitted) (emphasis added); Respondent’s Prelim. Resp. to Pet. to Confirm Arbitration Award at 25, May 14, 2010 [Dkt. No. 13] (“The Court should refuse to confirm the Arbitration" }, { "docid": "20499178", "title": "", "text": "granted the Republic’s motion to stay this case and concluded that it would postpone ruling on DRC’s petition in view of the pendency of a prior, parallel action brought by DRC in Honduras before the Honduran Supreme Court. See DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 68. The Court therefore stayed this case in its entirety pending further order of the Court; ordered the parties to file joint status reports with the Court every 60 days; and ordered that if either side learned of additional information that would warrant lifting the stay, such information should be filed promptly with the Court. See Order at 1, Mar. 28, 2011 [Dkt. No. 67], As the Court made clear in its March 28, 2011 Opinion, it stayed this case only pursuant to its authority under Article VI of the Inter-American Convention on International Commercial Arbitration (“Inter-American Convention”). DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 73; see id. at 73 n.5 (noting that the Court “does not herein decide — and therefore reserves ruling on (should such ruling become necessary) — whether this action should also be stayed until after final adjudication of the [False Claims Act] Action and the Claims Court action”). Article VI of the Inter-American Convention provides: If the competent authority [of the State in which, or according to the law of which, the arbitral decision has been made] has been requested to annul or suspend the arbitral decision, the authority before which such decision is invoked may, if it deems it appropriate, postpone a decision on the execution of the arbitral decision and, at the request of the party requesting execution, may also instruct the other party to provide appropriate guaranties. Inter-American Convention, Jan. 30, 1975, S. Treaty Doc. No. 97-12 (1981), 1438 U.N.T.S. 248. As the Court stated in its March 28, 2011 Opinion, at the time of the Court’s decision on the Republic’s motion to stay, the United States Court of Appeals for the District of Case l:10-cv00003-PLF Document 100 Filed 06/11/12 Page 4 of 12 Columbia Circuit had not yet had occasion to" }, { "docid": "2693775", "title": "", "text": "currently pending before Judge Roberts; (2) DRC’s action against USAID, Civil Action No. 04-940C, currently stayed in the Court of Federal Claims; and (3) DRC’s foreign action to enforce the Award, currently pending before the Honduran Supreme Court. See Mot. at 2, 10; see also Pet. Opp. at 2. The Republic asserts that a stay will “foster judicial economy, avoid duplication of effort, promote judicial and the parties’ efficiency and justice, and prevent inconsistent judgments, which may be embarrassing to the United States’ relations with Honduras.” Mot. at 10. More specifically, with respect to the FCA Action, the Republic argues that because the Award “is based on the same transactions and contract” at issue in the FCA Action, “[i]f the United States prevails, DRC would be held to have committed fraud in connection with the underlying transaction and contract which would be grounds to invalidate the award.” Mot. at 2. With respect to the relevant action in the Claims Court, the Republic argues that a stay is necessary “to avoid a double recovery.” Id. at 3. Finally, with respect to DRC’s foreign action to enforce the Award before the Honduran Supreme Court, the Republic argues: “The Honduras proceedings are prior in time and will adjudicate whether the arbitration award is enforceable against FHIS.” Id. Thus, the Republic contends that “[tjhere is a great danger of inconsistent judgments if this Court were to enforce the award against the Republic, and then [Judge Roberts] were to hold that DRC defrauded USAID and that the underlying agreement is void, and/or the Honduras courts were to hold that the award is unenforceable.” Id. DRC opposes the Republic’s motion for stay. First, DRC argues that the matters raised in the FCA Action were addressed and rejected during the arbitration. Opp. at 16. Thus, DRC contends that the arbitration tribunal’s rejection of any alleged fraud on DRC’s part “is now final and binding.” Id. Second, DRC argues that the action in the Claims Court “will not decide any issues that are relevant here.” Id. at 18. Finally, DRC argues that its action before the Honduran Supreme" }, { "docid": "20499195", "title": "", "text": "stay or, in the alternative, to order respondent to provide security (\"Stay Brief”) [Dkt. No. 76]; respondent’s memorandum in opposition to petitioner’s motion to lift stay or, in the alternative, to order respondent to provide security (“Stay Opp.”) [Dkt. No. 80]; petitioner’s reply brief in support of motion to lift stay or, in the alternative, to order respondent to provide security (\"Stay Reply”) [Dkt. No. 81]; petitioner's supplemental memorandum of law in support of its motion to lift the stay or, in the alternative, to require respondent to provide security (\"DRC Supp. Brief”) [Dkt. No. 92]; respondent’s supplemental memorandum in opposition to petitioner’s motion to lift the stay or, in the alternative, to require respondent to provide security (\"Republic Supp. Opp.”) [Dkt. No. 94]; petitioner’s supplemental reply memorandum in further support of its motion to lift stay or, in the alterative, to require respondent to provide security (\"DRC Supp. Reply”) [Dkt. No. 97]; and petitioner’s notice of decision in related proceeding (\"Notice”) [Dkt. No. 98]. In its motion, DRC requests oral argument. See Stay Mot. at 1. In view of the supplemental briefing ordered by the Court and submitted by the parties, the Court has concluded that oral argument would not assist it in resolving the pending motion and therefore, in its discretion, will deny DRC’s request for oral argument. See Loe. Civ. R. 7(f). . The court of appeals in BSDL denied the motion of the respondent for rehearing en banc. See Order at 1, No. 10-7167 (D.C.Cir. ■Mar. 29, 2012). The court of appeals’ mandate issued on April 30, 2012." }, { "docid": "2693762", "title": "", "text": "of its motion to dismiss; and (6) DRC’s motion to place certain filings under seal. Upon consideration of the parties’ papers, the relevant legal authorities, and the entire record in this case, the Court will grant the Republic’s motion to stay and will postpone ruling on DRC’s petition in light of the pendency of a prior, parallel action before the Honduran Supreme Court, DRC, Inc. v. Fondo Hondureño de Inversion Social, Case No. 301-2009. I. BACKGROUND A. Construction Contract for Infrastructure Work in Honduras Hurricane Mitch struck Central America in 1998 and caused tremendous destruction and dislocation. See Mot. at 1. In response, the United States Agency for International Development (“USAID”) funded reconstruction projects in various Central American countries, including Honduras. Id. One such project was undertaken in collaboration with FHIS, an instrumentality of the Republic of Honduras. See id. This project involved the construction of certain water and wastewa-ter sub-projects in Honduras. Pet. at 2; see Mot. at 1. FHIS solicited bids for the project, and DRC was eventually selected as the contractor. See Mot. at 1, 6. FHIS and DRC therefore entered into a construction contract on June 21, 2000. See Pet., Farmer Aff. Ex. B, Construction Contract (“Construction Contract”) at 9, June 21, 2000; see also Pet. at 2; Pet. Opp. at 4. According to the Republic, the Construction Contract expressly provided “that the work would be funded by USAID, and USAID would pay DRC.” Mot. at 1. In addition, USAID issued a Letter of Commitment to DRC, in which USAID committed to pay for the construction work through grants payable directly to DRC. Id. The Construction Contract between FHIS and DRC required that all controversies and disputes be governed by the Construction Contract Liability Clauses. Construction Contract at 8; see also Pet. at 3. According to DRC, the Construction Contract Liability Clauses state “the parties’ agreement to resolve disputes arising under the Contract pursuant to arbitration.” Pet. at 3; see Pet., Farmer Aff. Ex. C, Mandatory Clauses, Construction Services Contracts at 17 ¶ 9(c). B. Problems Arising Out of the Construction Contract In June and July" }, { "docid": "2693776", "title": "", "text": "3. Finally, with respect to DRC’s foreign action to enforce the Award before the Honduran Supreme Court, the Republic argues: “The Honduras proceedings are prior in time and will adjudicate whether the arbitration award is enforceable against FHIS.” Id. Thus, the Republic contends that “[tjhere is a great danger of inconsistent judgments if this Court were to enforce the award against the Republic, and then [Judge Roberts] were to hold that DRC defrauded USAID and that the underlying agreement is void, and/or the Honduras courts were to hold that the award is unenforceable.” Id. DRC opposes the Republic’s motion for stay. First, DRC argues that the matters raised in the FCA Action were addressed and rejected during the arbitration. Opp. at 16. Thus, DRC contends that the arbitration tribunal’s rejection of any alleged fraud on DRC’s part “is now final and binding.” Id. Second, DRC argues that the action in the Claims Court “will not decide any issues that are relevant here.” Id. at 18. Finally, DRC argues that its action before the Honduran Supreme Court “has been suspended and might never result in a decision.” Id. at 15. The Court agrees with the Republic of Honduras that this action should be stayed in light of the pendency of the prior, parallel action currently before the Honduran Supreme Court, DRC, Inc. v. Fondo Hondureño de Inversion Social, Case No. 301-2009. Accordingly, under Article VI of the Inter-American Convention, the Court will exercise its discretion and will postpone ruling on DRC’s petition. This Court has previously set forth the framework for determining whether to postpone a decision to enforce an arbitration award pursuant to Article VI of the New York Convention. See Continental Transfert Technique Ltd. v. Federal Gov’t of Nigeria, 697 F.Supp.2d 46, 59-60 (D.D.C.2010). That framework is equally applicable here given that the relevant text of Article VI of the Inter-American Convention is substantively identical to that of the New York Convention and that the two conventions “ ‘are intended to achieve the same results.’ ” Energy Transp., Ltd. v. M.V. San Sebastian, 348 F.Supp.2d at 198 (quoting H.R.Rep." }, { "docid": "20499188", "title": "", "text": "936 (“[A]n arbitration award does not exist to be enforced in other Contracting States if it has been lawfully ‘set aside’ by a competent authority in the State in which the award was made.”); see also BSDL, 668 F.3d at 730 (citing Karaha Bodas Co. L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 367-68 (5th Cir.2003)); Republic of Argentina v. BG Group PLC, 764 F.Supp.2d 21, 27 n. 4 (D.D.C.2011), reversed on other grounds, 665 F.3d 1363, 1366 (D.C.Cir.2012). As DRC describes it: Under Honduran law, an arbitral award becomes final and binding either immediately or within ten days thereafter if one of the parties has sought correction, clarification or supplementation within the three-day deadline to do so. A motion to vacate the award must be filed within seven (7) days after the award is rendered or after a decision has been issued correcting, clarifying or supplementing the award. It is undisputed that FHIS never sought to correct, clarify or supplement the Award nor did it file a motion to vacate the award. The Award, therefore, became final, binding, and non-appealable under Honduran Law as of September 15, 2009 .... Since that date, the Award could not be set aside, annulled or vacated in Honduran courts. Stay Brief at 15 (internal footnotes and citations omitted) (emphasis added); see also Stay Brief, Ex. 28, Honduran Law of Conciliation and Arbitration Art. 73 (“A motion to vacate the arbitration award may only be filed within seven (7) days following the notice of the decision or order whereby the award is clarified, corrected, or supplemented.”); id. art. 75 (“The court of appeals or the arbitration tribunal shall categorically deny a motion to vacate when it is clear that it was untimely filed[.]”). The Republic has not contested DRC’s description. It is undisputed that the arbitration award was rendered on September 8, 2009. See DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 70; see also Petition for Confirmation of Foreign Arbitration Award, Ex. E at 2 [Dkt. No. 1-3]. The Republic’s own declarants have acknowledged that it was not" }, { "docid": "2693787", "title": "", "text": "confirmation of a foreign arbitration award (\"Pet. Mem.”); respondent's preliminary response to petition to confirm arbitration award (\"Pet. Opp.”); DRC’s reply in support of its petition to confirm international arbitration award (\"Pet. Reply”); respondent’s motion to stay action or, in the alternative, dismiss petition (\"Mot.”); DRC’s response to the Republic of Honduras’ motion to stay action or, in the alternative, dismiss petition (\"Opp.”); reply in support of respondent’s motion to stay and, in the alternative, dismiss petition (\"Reply”); United States statement of interest (“First U.S. Statement”); DRC, Inc.’s response to the United States’ statement of interest (\"Response to U.S. Statement”); United States Agency for International Development second statement of interest (\"Second U.S. Statement”); respondent’s motion to bifurcate (\"Bifurcate Mot.”); DRC’s response to the motion to bifurcate of the Republic of Honduras (\"Bifurcate Opp.”); reply in support of respondent's motion to bifurcate (\"Bifurcate Reply”); respondent’s motion to dismiss with prejudice the petition for petitioner's severe litigation misconduct (\"Misconduct Mot.”); DRC, Inc.’s opposition to the Republic’s motion to dismiss for alleged litigation misconduct (\"Misconduct Opp.”); reply in support of respondent's motion to dismiss with prejudice the petition for petitioner’s severe litigation misconduct (\"Misconduct Reply”); DRC's motion to strike an illegal transcript and other materials submitted by the Republic to support its motion to dismiss (\"Strike Mot.”); respondent's memorandum in opposition to petitioner's motion to strike transcript and other materials (\"Strike Opp.”); DRC Inc.’s reply in support of its motion to strike an illegal transcript and other materials (\"Strike Reply”); DRC, Inc.’s motion to place under seal (\"Seal Mot.”); respondent’s memorandum in opposition to petitioner’s motion to seal the record (\"Seal Opp.”); and DRC Inc.’s reply in support of its motion to seal (\"Seal Reply”). . \"Fondo Hondureño de Inversión Social” translates to the Honduran Social Investment Fund. Mot. at 5. The parties appear to agree that FHIS is in fact an instrumentality of the Republic of Honduras. See Pet. at 2; Mot. at 1, 5. The parties disagree, however, whether the Republic should be held liable for FHIS' purported obligations. Compare Mot. at 18 (arguing that \"[t]he separateness between FHIS and the" }, { "docid": "2693785", "title": "", "text": "Court, it is better to permit the validity of this [Honduran] arbitral award to be first tested under [Honduran] law by [Honduran] courts. That is preferable to an American court seeking to apply the law of the foreign country where the award was made, and entering an order enforcing an award later condemned by the courts of that foreign country. Spier v. Calzaturificio Tecnica S.p.A., 663 F.Supp. 871, 875 (S.D.N.Y.1987); see also Nedagro B.V. v. Zao Konversbank, 2003 WL 151997, at *7 (deferring decision on a petition to confirm an arbitration award in light of the pendency of a parallel foreign action commenced by petitioner to confirm the award); Fertilizer Corp. of India v. IDI Mgmt., Inc., 517 F.Supp. 948, 961-62 (S.D.Ohio 1981). Accordingly, the Court will grant the Republic’s motion to stay and will postpone ruling on DRC’s petition in light of the pendency of the prior, parallel action before the Honduran Supreme Court, DRC, Inc. v. Fondo Hondureño de Inversión Social, Case No. 301-2009. One final matter requires discussion. Article VI of the Inter-American Convention provides that the Court may, “at the request of the party requesting execution, ... instruct the other party to provide appropriate guaranties.” Inter-American Convention, art. VI. Invoking this provision of Article VI, DRC has requested a guaranty: “[I]f the Court postpones enforcement, DRC requests that the Republic be ordered to post appropriate guaranties, equal to the amount of the Award, plus interest.” Pet. Reply at 13. The Court will not require the Republic of Honduras — a sovereign state that presumably is solvent and will comply with legitimate orders issued by courts in this country or in Honduras — to post any guaranty in this case. IV. CONCLUSION For the foregoing reasons, the Republic of Honduras’ motion to stay [Dkt. No. 11] is GRANTED. An Order consistent with this Opinion shall issue this same day. SO ORDERED. . The papers reviewed in connection with the pending motion to stay include the following: petition of DRC, Inc. for confirmation of a foreign arbitration award (“Pet.”); DRC, Inc.’s memorandum in support of its petition for" }, { "docid": "2693786", "title": "", "text": "Inter-American Convention provides that the Court may, “at the request of the party requesting execution, ... instruct the other party to provide appropriate guaranties.” Inter-American Convention, art. VI. Invoking this provision of Article VI, DRC has requested a guaranty: “[I]f the Court postpones enforcement, DRC requests that the Republic be ordered to post appropriate guaranties, equal to the amount of the Award, plus interest.” Pet. Reply at 13. The Court will not require the Republic of Honduras — a sovereign state that presumably is solvent and will comply with legitimate orders issued by courts in this country or in Honduras — to post any guaranty in this case. IV. CONCLUSION For the foregoing reasons, the Republic of Honduras’ motion to stay [Dkt. No. 11] is GRANTED. An Order consistent with this Opinion shall issue this same day. SO ORDERED. . The papers reviewed in connection with the pending motion to stay include the following: petition of DRC, Inc. for confirmation of a foreign arbitration award (“Pet.”); DRC, Inc.’s memorandum in support of its petition for confirmation of a foreign arbitration award (\"Pet. Mem.”); respondent's preliminary response to petition to confirm arbitration award (\"Pet. Opp.”); DRC’s reply in support of its petition to confirm international arbitration award (\"Pet. Reply”); respondent’s motion to stay action or, in the alternative, dismiss petition (\"Mot.”); DRC’s response to the Republic of Honduras’ motion to stay action or, in the alternative, dismiss petition (\"Opp.”); reply in support of respondent’s motion to stay and, in the alternative, dismiss petition (\"Reply”); United States statement of interest (“First U.S. Statement”); DRC, Inc.’s response to the United States’ statement of interest (\"Response to U.S. Statement”); United States Agency for International Development second statement of interest (\"Second U.S. Statement”); respondent’s motion to bifurcate (\"Bifurcate Mot.”); DRC’s response to the motion to bifurcate of the Republic of Honduras (\"Bifurcate Opp.”); reply in support of respondent's motion to bifurcate (\"Bifurcate Reply”); respondent’s motion to dismiss with prejudice the petition for petitioner's severe litigation misconduct (\"Misconduct Mot.”); DRC, Inc.’s opposition to the Republic’s motion to dismiss for alleged litigation misconduct (\"Misconduct Opp.”); reply in" }, { "docid": "20499192", "title": "", "text": "action currently before the Honduran Supreme Court, DRC, Inc. v. Fondo Hondureno de Inversión Social, Case No. 301-2009.” DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 73. While the Court also required the parties to file status reports every 60 days and to advise the Court of any information that would warrant lifting the stay, see Order at 1, Mar. 28, 2011, under BSDL the stay is effectively indefinite. “[A] district court’s issuance of an indefinite stay order must be supported by ‘a balanced finding that such need overrides the injury to the party being stayed.’ ” BSDL, 668 F.3d at 732 (quoting Dellinger v. Mitchell, 442 F.2d at 787). The burden is on the movant — here, the Republic — to “make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which [it] prays will work damage to some one else.” Landis v. North Am. Co., 299 U.S. at 255, 57 S.Ct. 163. The Court carefully has considered the concerns of the Republic and DRC, see Stay Opp. at 23; DRC Supp. Brief at 16-20; Republic Supp. Brief at 10, and concludes that the Republic has failed to satisfy its burden of proving that a stay is justified by any pressing need that outweighs the hardship on DRC. III. CONCLUSION For the foregoing reasons, it is hereby ORDERED that DRC’s motion to lift the stay or, in the alternative, to order the Republic of Honduras to provide security [Dkt. No. 72] is GRANTED in part and DENIED as moot in part; it is FURTHER ORDERED that DRC’s motion to lift the stay in this case is GRANTED; it is FURTHER ORDERED that the Court’s March 28, 2011 Order imposing a stay of this case in its entirety [Dkt. No. 67] is VACATED; it is FURTHER ORDERED that DRC’s alternative request that the Court order the Republic of Honduras to provide security is DENIED as moot; it is FURTHER ORDERED that DRC’s request for oral argument is DENIED; and it is FURTHER ORDERED" }, { "docid": "20499177", "title": "", "text": "alternative request for security, and will order supplemental briefing. I. BACKGROUND The Court previously has described the background of this case. See DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d 66, 67-71 (D.D.C.2011); see also Memorandum Op. & Order at 1-3, Jan. 17, 2012 [Dkt. No. 88]. It therefore will limit its discussion accordingly. This is an action to enforce a foreign arbitration award rendered in the Republic of Honduras by Honduran arbitrators under Honduran law. The underlying dispute in this ease arises out of a construction contract between DRC and the Fondo Hondureno de Inversión Social (“FHIS”) — an instrumentality of the Republic of Honduras — under which DRC agreed to construct certain water and wastewater sub-projects in Honduras. DRC demanded arbitration with FHIS, and ultimately an arbitration award was rendered against FHIS on September 8, 2009 that required FHIS to pay DRC over $51 million. On January 5, 2010, DRC filed a petition in this Court for confirmation of that arbitration award against the Republic of Honduras. On March 28, 2011, the Court granted the Republic’s motion to stay this case and concluded that it would postpone ruling on DRC’s petition in view of the pendency of a prior, parallel action brought by DRC in Honduras before the Honduran Supreme Court. See DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 68. The Court therefore stayed this case in its entirety pending further order of the Court; ordered the parties to file joint status reports with the Court every 60 days; and ordered that if either side learned of additional information that would warrant lifting the stay, such information should be filed promptly with the Court. See Order at 1, Mar. 28, 2011 [Dkt. No. 67], As the Court made clear in its March 28, 2011 Opinion, it stayed this case only pursuant to its authority under Article VI of the Inter-American Convention on International Commercial Arbitration (“Inter-American Convention”). DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 73; see id. at 73 n.5 (noting that the Court “does not herein decide — and therefore reserves ruling on" }, { "docid": "20499180", "title": "", "text": "offer much guidance on the manner in which a district court should “postpone” an action brought under the Inter-American Convention. DRC, Inc. v. Republic of Honduras, 774, F.Supp.2d at 73. That is no longer the case. On January 13, 2012, the court of appeals in BSDL considered an appeal of a district court order staying a proceeding to confirm and enforce a foreign arbitration award pending the outcome of related litigation in Belize. See BSDL, 668 F.3d at 727. The court of appeals clarified the standard under which a district court has authority to stay an enforcement action and concluded in that ease “that the stay order as issued exceeded the proper exercise of authority of the district court[.]” Id. That decision now is the law of the D.C. Circuit. DRC argues in its supplemental briefing that BSDL requires that the Court lift the stay imposed in this case. See DRC Supp. Brief at 6. The Republic, in contrast, argues that BSDL actually “supports the continued stay of this action[.]” Republic Supp. Brief at 1. The Court agrees with DRC and concludes that the court of appeals’ decision in BSDL requires that the Court lift the stay. II. DISCUSSION Although the court of appeals in BSDL addressed a district court’s authority to stay a proceeding under the Convention on Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”), see BSDL, 628 F.3d at 727, a different arbitration convention than the one at issue before the Court in this case, it is clear that both the New York Convention and the Inter-American Convention “are intended to achieve the same results, and their key provisions adopt the same standards, phrased in the legal style appropriate for each organization.” DRC, Inc. v. Republic of Honduras, 774 F.Supp.2d at 71 (quotations omitted); see also International Ins. Co. v. Caja Nacional de Ahorro y Seguro, 293 F.3d 392, 396 n. 9 (7th Cir.2002) (noting that various provisions of both conventions “are substantively identical”). The court of appeals in BSDL emphasized that under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 201-08, a district court" }, { "docid": "20499179", "title": "", "text": "(should such ruling become necessary) — whether this action should also be stayed until after final adjudication of the [False Claims Act] Action and the Claims Court action”). Article VI of the Inter-American Convention provides: If the competent authority [of the State in which, or according to the law of which, the arbitral decision has been made] has been requested to annul or suspend the arbitral decision, the authority before which such decision is invoked may, if it deems it appropriate, postpone a decision on the execution of the arbitral decision and, at the request of the party requesting execution, may also instruct the other party to provide appropriate guaranties. Inter-American Convention, Jan. 30, 1975, S. Treaty Doc. No. 97-12 (1981), 1438 U.N.T.S. 248. As the Court stated in its March 28, 2011 Opinion, at the time of the Court’s decision on the Republic’s motion to stay, the United States Court of Appeals for the District of Case l:10-cv00003-PLF Document 100 Filed 06/11/12 Page 4 of 12 Columbia Circuit had not yet had occasion to offer much guidance on the manner in which a district court should “postpone” an action brought under the Inter-American Convention. DRC, Inc. v. Republic of Honduras, 774, F.Supp.2d at 73. That is no longer the case. On January 13, 2012, the court of appeals in BSDL considered an appeal of a district court order staying a proceeding to confirm and enforce a foreign arbitration award pending the outcome of related litigation in Belize. See BSDL, 668 F.3d at 727. The court of appeals clarified the standard under which a district court has authority to stay an enforcement action and concluded in that ease “that the stay order as issued exceeded the proper exercise of authority of the district court[.]” Id. That decision now is the law of the D.C. Circuit. DRC argues in its supplemental briefing that BSDL requires that the Court lift the stay imposed in this case. See DRC Supp. Brief at 6. The Republic, in contrast, argues that BSDL actually “supports the continued stay of this action[.]” Republic Supp. Brief at 1." }, { "docid": "20499193", "title": "", "text": "considered the concerns of the Republic and DRC, see Stay Opp. at 23; DRC Supp. Brief at 16-20; Republic Supp. Brief at 10, and concludes that the Republic has failed to satisfy its burden of proving that a stay is justified by any pressing need that outweighs the hardship on DRC. III. CONCLUSION For the foregoing reasons, it is hereby ORDERED that DRC’s motion to lift the stay or, in the alternative, to order the Republic of Honduras to provide security [Dkt. No. 72] is GRANTED in part and DENIED as moot in part; it is FURTHER ORDERED that DRC’s motion to lift the stay in this case is GRANTED; it is FURTHER ORDERED that the Court’s March 28, 2011 Order imposing a stay of this case in its entirety [Dkt. No. 67] is VACATED; it is FURTHER ORDERED that DRC’s alternative request that the Court order the Republic of Honduras to provide security is DENIED as moot; it is FURTHER ORDERED that DRC’s request for oral argument is DENIED; and it is FURTHER ORDERED that, in its motion papers, DRC states that it believes “the Court might benefit from supplemental briefing on the narrow question of whether the Award against FHIS can be enforced against the Republic.” Stay Reply at 14 n.35. And in its supplemental briefing, DRC requests that, “when the stay is lifted, the Court permit the parties to submit supplemental briefing on DRC’s entitlement to and the amount of prejudgment interest that should be included in any Court order confirming the Award.” DRC Supp. Reply at 10. The Court finds that supplemental briefing on the two issues raised by DRC would be helpful. Therefore, by June 22, 2012, the parties shall meet and confer and shall file a joint report with the Court setting forth a proposed briefing schedule on these two supplemental briefing topics. SO ORDERED. . The papers reviewed in connection with the pending motion include: petitioner's motion to lift stay or, in the alternative, to order respondent to provide security (\"Stay Mot.”) [Dkt. No. 72]; petitioner’s brief in support of motion to lift" }, { "docid": "20499194", "title": "", "text": "that, in its motion papers, DRC states that it believes “the Court might benefit from supplemental briefing on the narrow question of whether the Award against FHIS can be enforced against the Republic.” Stay Reply at 14 n.35. And in its supplemental briefing, DRC requests that, “when the stay is lifted, the Court permit the parties to submit supplemental briefing on DRC’s entitlement to and the amount of prejudgment interest that should be included in any Court order confirming the Award.” DRC Supp. Reply at 10. The Court finds that supplemental briefing on the two issues raised by DRC would be helpful. Therefore, by June 22, 2012, the parties shall meet and confer and shall file a joint report with the Court setting forth a proposed briefing schedule on these two supplemental briefing topics. SO ORDERED. . The papers reviewed in connection with the pending motion include: petitioner's motion to lift stay or, in the alternative, to order respondent to provide security (\"Stay Mot.”) [Dkt. No. 72]; petitioner’s brief in support of motion to lift stay or, in the alternative, to order respondent to provide security (\"Stay Brief”) [Dkt. No. 76]; respondent’s memorandum in opposition to petitioner’s motion to lift stay or, in the alternative, to order respondent to provide security (“Stay Opp.”) [Dkt. No. 80]; petitioner’s reply brief in support of motion to lift stay or, in the alternative, to order respondent to provide security (\"Stay Reply”) [Dkt. No. 81]; petitioner's supplemental memorandum of law in support of its motion to lift the stay or, in the alternative, to require respondent to provide security (\"DRC Supp. Brief”) [Dkt. No. 92]; respondent’s supplemental memorandum in opposition to petitioner’s motion to lift the stay or, in the alternative, to require respondent to provide security (\"Republic Supp. Opp.”) [Dkt. No. 94]; petitioner’s supplemental reply memorandum in further support of its motion to lift stay or, in the alterative, to require respondent to provide security (\"DRC Supp. Reply”) [Dkt. No. 97]; and petitioner’s notice of decision in related proceeding (\"Notice”) [Dkt. No. 98]. In its motion, DRC requests oral argument. See Stay Mot." }, { "docid": "2693761", "title": "", "text": "OPINION PAUL L. FRIEDMAN, District Judge. This is an action to enforce a foreign arbitration award rendered in the Republic of Honduras by Honduran arbitrators under Honduran law. The underlying dispute arose out of a construction contract between petitioner, DRC, Inc. (“DRC”), and the Fondo Hondureno de Inversión Social (“FHIS”) — an instrumentality of respondent, the Republic of Honduras (the “Republic”) — under which DRC agreed to construct certain water and wastewater sub-projects in Honduras. DRC demanded arbitration with FHIS, and, after approximately twenty-four days of arbitration proceedings, an arbitration award was rendered against FHIS that required FHIS to pay DRC over $51 million. DRC has now petitioned this Court for confirmation of this arbitration award against the Republic of Honduras. There are six motions currently pending before the Court: (1) the Republic’s motion to stay; (2) the Republic’s motion to dismiss; (3) the Republic’s motion to bifurcate; (4) the Republic’s motion to dismiss with prejudice because of DRC’s alleged severe litigation misconduct; (5) DRC’s motion to strike materials submitted by the Republic in support of its motion to dismiss; and (6) DRC’s motion to place certain filings under seal. Upon consideration of the parties’ papers, the relevant legal authorities, and the entire record in this case, the Court will grant the Republic’s motion to stay and will postpone ruling on DRC’s petition in light of the pendency of a prior, parallel action before the Honduran Supreme Court, DRC, Inc. v. Fondo Hondureño de Inversion Social, Case No. 301-2009. I. BACKGROUND A. Construction Contract for Infrastructure Work in Honduras Hurricane Mitch struck Central America in 1998 and caused tremendous destruction and dislocation. See Mot. at 1. In response, the United States Agency for International Development (“USAID”) funded reconstruction projects in various Central American countries, including Honduras. Id. One such project was undertaken in collaboration with FHIS, an instrumentality of the Republic of Honduras. See id. This project involved the construction of certain water and wastewa-ter sub-projects in Honduras. Pet. at 2; see Mot. at 1. FHIS solicited bids for the project, and DRC was eventually selected as the contractor. See" } ]

[ { "docid": "18019146", "title": "", "text": "the bribery of a state assistant district attorney, thus demonstrating “an arrogant disregard for the sanctity of the state judicial and police processes.” Id. at 677. No such egregious conduct appears here. Appellants next assert that the trial court erred in refusing to give a requested jury instruction concerning the prior convictions of the Government informant and of Preecha. We disagree. Evidence of the prior criminal records of Preecha and the informant was before the jury. Judge Neaher in his instructions specifically charged the jury that the testimony of the informer and the confessed accomplice must be examined with great care and caution because informers are often in trouble with the law and motivated by money or immunity from punishment and Preecha was a confessed criminal. Under these circum stances it was not error to refuse to give the defendants’ requested instruction in haec verba. Appellants next assert that the modified Allen charge given by Judge Neaher was coercive. We do not agree. At approximately 6:00 P.M. on the second day of its deliberations the jury sent out a note to the effect that it could not reach a unanimous verdict as to any defendant on any count. The trial court then gave a modified Allen charge and asked the jury to decide for itself whether further deliberations would be productive in light of the Allen charge or whether it was time to stop. The jury responded through a note that it had agreed to stay and deliberate further. Its deliberations then proceeded for almost four more hours before a verdict was reached. We do not feel this was a coerced verdict under the circumstances. United States v. Robinson, 560 F.2d 507 (2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 58 L.Ed.2d 496 (1978). Speculation by the appellants that the jury was coerced because of the time of day, the meal schedule and the fact that it was the night before Good Friday is unsupported by the record. Finally, appellants argue that the admission of the handwritten note taken from Pesce’s kitchen constituted reversible error," } ]

[ { "docid": "15963628", "title": "", "text": "mutilated bills were not admitted into evidence. See United States v. Francolino, 367 F.2d 1013, 1016 (2d Cir. 1966), cert. denied, 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d 110 (1967). Finally, Reed argues that the trial court erred when it gave two supplemental jury instructions. After deliberating approximately two hours, the jury informed the court that after numerous votes it was unable to come to a unanimous decision. The court gave an instruction requesting the jury to continue its deliberations in order to reach an agreement if possible. Reed made no objection. After deliberating another hour or so, the jury notified the court that no progress had been made after extensive reconsideration. The court then gave an Allen -type instruction, 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 18.14 (3d ed. 1977), again with no objection from the defendant. Approximately one hour later, the jury returned a guilty verdict. Reed has made no specific allegation that the supplemental instructions had a coercive effect on the jury other than alleging that an Allen charge is inherently coercive. Although we do not favor the charge and have suggested that it preferably be given in the main body of the regular instructions, we have nonetheless repeatedly rejected attacks on the Allen charges as per se coercive. E.g, United States v. Wiebold, 507 F.2d 932, 934-35 (8th Cir. 1974); see United States v. Smith, 635 F.2d 716, 720 n.7 (8th Cir. 1980) (McMillian, J.). Furthermore, we agree with those courts holding that giving these two charges to a jury is not per se coercive. See United States v. Fossler, 597 F.2d 478, 483-85 (5th Cir. 1979); United States v. O’Connor, 580 F.2d 38, 44 (2d Cir. 1978); United States v. Robinson, 560 F.2d 507, 516-18 (2d Cir. 1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). Contra United States v. Seawell, 550 F.2d 1159, 1162-63 (9th Cir. 1977), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 666 (1978). The jury deliberated for a substantial period of time after receiving the second supplemental instruction," }, { "docid": "7408141", "title": "", "text": "objection was made to the form of the instruction. The jury continued its deliberations until lunch time. Deliberations were then interrupted until the afternoon of October 28, 1993 because of the issue relating to Juror Douglas P. Berger, discussed below, which arose at lunch. The court continues to believe that it had the discretion to give a second modified Men charge and exercised this discretion appropriately. The propriety of any “Men-type charge depends on whether it tends to coerce undecided jurors into reaching a verdict by abandoning without reason conscientiously held doubts.” United States v. Robinson, 560 F.2d 507, 517 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). In deciding whether a second modified Allen charge is permissible and appropriate, an individualized determination of coercion is required. Id. (affirming decision to give second modified Allen charge); United States v. Ruggiero, 928 F.2d 1289, 1299-1300 (2d Cir.) cert. denied, Gotti v. United States, — U.S. -, 112 S.Ct. 372, 116 L.Ed.2d 324 (1991) (same); United States v. O’Connor, 580 F.2d 38, 44 (2d Cir.1978) (same); United States v. Reed, 686 F.2d 651, 653 (8th Cir.1982) (same); but see United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir.1977) (holding second modified Allen charge coercive per se unless jury requests it). In the present case, the second modified Allen charge was not coercive. The jurors were expressly reminded not to abandon their conscientious convictions in order to reach a unanimous verdict. See Robinson, 560 F.2d at 517; Ruggiero, 928 F.2d at 1299. They were not pressured by being sequestered or required to deliberate in the evening or. over a weekend. Perhaps most significantly, after the second modified Allen charge the jury deliberated for a full morning without reaching a verdict before the Berger issue arose, and deliberated further for a day and a half after he was excused before reaching a unanimous verdict on three of the four counts. See O’Connor, 580 F.2d at 44 (jury deliberated several hours after the second charge); Robinson, 560 F.2d at 517 (jury deliberated for more than four" }, { "docid": "7408140", "title": "", "text": "was no change in its deliberations and asked to return the next morning. Id. at 16. On October 26, 1993, the jury deliberated until about 3:00 p.m. when it reported it had made no progress in its deliberations and saw no potential for reaching a unanimous verdict on any of the four counts through continued rational discussion. October 26, 1993 Tr. at 8. The defendant expressed the view that giving the jury another modified Men charge was not impermissible in the First Circuit as a matter of law, id. at 9-10, but moved for a mistrial based upon the circumstances of this case, id. at 8-10. The motion was denied, id. at 12, and the jury was excused until the next day. On October 27, 1993, the jury was again given a modified Allen charge which reiterated, among other things, that no juror should abandon his or her conscientious beliefs for the sake of reaching a unanimous verdict and that the jury had a right to fail to agree. October 27, 1993 Tr. 17-19. No objection was made to the form of the instruction. The jury continued its deliberations until lunch time. Deliberations were then interrupted until the afternoon of October 28, 1993 because of the issue relating to Juror Douglas P. Berger, discussed below, which arose at lunch. The court continues to believe that it had the discretion to give a second modified Men charge and exercised this discretion appropriately. The propriety of any “Men-type charge depends on whether it tends to coerce undecided jurors into reaching a verdict by abandoning without reason conscientiously held doubts.” United States v. Robinson, 560 F.2d 507, 517 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). In deciding whether a second modified Allen charge is permissible and appropriate, an individualized determination of coercion is required. Id. (affirming decision to give second modified Allen charge); United States v. Ruggiero, 928 F.2d 1289, 1299-1300 (2d Cir.) cert. denied, Gotti v. United States, — U.S. -, 112 S.Ct. 372, 116 L.Ed.2d 324 (1991) (same); United States v. O’Connor," }, { "docid": "23040855", "title": "", "text": "facts. The jury did not indicate that it was deadlocked on these questions; it indicated that it was divided. That the jury took its task seriously and deliberated conscientiously is manifest; before rendering its initial verdict the jury requested guidance from the court as to whether it could continue if it was divided on a question. AT & T can hardly argue that the jury was predisposed to find in Litton’s favor given the fact that it found against Litton on two out of four theories of liability and divided on a third. AT & T’s argument that the jury had no incentive to find against Litton on the unresolved proximate cause question because the initial verdict would stand in any event is pure speculation. Even if we were to concede AT&T’s premise that the jury was likely to shirk its duty conscientiously to reconsider these questions — a premise we find highly questionable given that the jury served over five months without a single absence and deliberated for eight days — the con elusion that it was likely to resolve these questions in Litton’s favor simply does not follow. Nor do we find anything coercive in the trial judge’s instructions. The jurors were informed that their answers to the questions were “important” and that they should listen to the views of their fellow jurors without abandoning their own conscientiously held views. Far from being coercive, this instruction was completely in keeping with the recognition that: A system which requires the unanimous verdict of a jury ... can function satisfactorily in most cases only because most jurors are reasonable ... and after a certain amount of discussion has produced a large majority in favor of one view, those in the minority may be willing to join the majority in the belief that if so many other reasonable people have a contrary view, the views of the minority may well be mistaken. Instructions ... in both state and federal courts stress the importance of jurors listening to the views of one another and making allowance for the fact that there can" }, { "docid": "19892499", "title": "", "text": "Allen charge is the suggestion that jurors in the minority should reconsider their position. 164 U.S. at 501, 17 S.Ct. 154 (\"[I]f much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, [on] the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.”). Due to the potential coercive effects on jurors in the minority, the Allen charge has been called the \"dynamite charge” because \"[ljike dynamite, it should be used with great caution, and only when absolutely necessary.” United States v. Flannery, 451 F.2d 880, 883 (1st Cir.1971). In more recent times, courts have tended to use \"modified” Allen charges that do not contrast the majority and minority positions. See Leonard B. Sand, et al., 1 Modem Federal Jury Instructions: Criminal, Instruction 9-11 (2004) (comparing modified Allen charges used in different Circuits); see also Wayne F. Foster, Instructions Urging Dissenting Jurors in State Criminal Case to Give Due Consideration to Opinion of Majority (Allen Charge)— Modern Cases, 97 A.L.R. 96, § 2 (3d ed.1980, updated 2006). . The jurors in Lowenfield had already reached a decision in a capital case, but were deadlocked in sentencing deliberations. The supplemental charge to the deadlock jury stated: Ladies and Gentlemen, as I instructed you earlier if the jury is unable to unanimously agree on a recommendation the Court shall impose the sentence of Life Imprisonment without benefit of Probation, Parole, or Suspension of Sentence. When you enter the jury room it is your duty to consult with one another to consider each other's views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to that individual judgment. Each of you must decide the case for yourself but only after discussion and impartial consideration of the case with your fellow jurors. You are" }, { "docid": "7408160", "title": "", "text": "juror confidently responded to the Clerk’s inquiry, October 29, 1993 Tr. at 11-12, and the jurors did not appear to the court to be feeling pressured or exhausted. These facts confirmed the court’s earlier view that the 11 person jury would continue to deliberate properly and return verdicts based upon rational discussion and conscientious conviction, unaffected by any perception of coercion or other improper influence. Accordingly, the court again finds it was proper to accept the verdict of the 11 jurors who decided the case. See Ruggiero, 928 F.2d at 763; Egbuniwe, 969 F.2d at 763. IV. Order For the foregoing reasons, defendant’s motion for a new trial is hereby DENIED. . The defendant, however, objected that the court's concluding statement, that ‘‘[w]e will await your further communication and, hopefully, your verdict,” was coercive. The court, however, again finds when viewed in the context of the complete instructions, the comment was not coercive. October 25, 1993 Tr. at 3-16. This view is reinforced by the length of the deliberations which followed the instruction. United States v. O’Connor, 580 F.2d 38, 44 (2d Cir.1978), United States v. Robinson, 560 F.2d 507, 517 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). . Defense counsel did not at trial object to the substance of the court’s questions to Mr. Berger or to the manner in which they were asked. Indeed, defense counsel subsequently requested that the remaining jurors be questioned “in the same kind of open fashion that was done with Mr. Berger.” October 28, 1993 Tr. at 33. Thus, defense counsel's present claim that \"only the improper and persistent questioning by the court finally produced equivocation by the juror,” is not only unfounded, it is also surprising. Defendant’s Memorandum in Support of Motion for New Trial at 24. . In contrast to Ruggiero, the court in the present case did not instruct the jury to begin its deliberations again after Mr. Berger was excused. Rule 23(b) does not require such an instruction and the defendant did not request one. If defendant's speculation that Mr." }, { "docid": "870250", "title": "", "text": "Co. Ltd., 150 F.2d 54 (2d Cir. 1945); 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1302.1 at 346. But the purpose of the All Writs Act, 28 U.S.O. § 1651, is to enable federal appellate courts to review by mandamus non-appealable interlocutory orders which would be the subject of review on appeal from a final judgment. La Buy v. Howes Leather Co., supra note 1, at 255, 77 S.Ct. 309; 9 J. Moore’s Federal Practice IT 110.26. This is not to say that supervisory mandamus is intended, or can be used, to authorize the indiscriminate use of prerogative writs as a medium for reviewing interlocutory orders. Mandamus will lie, in the sound discretion of the appellate court, where the trial court has exceeded or wrongfully refused to exercise its judicial power or has committed a clear abuse of discretion. Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953). Only in such cases does the desirability of present review outweigh the policies which confine appeals to the review of final orders. See 6A J. Moore, supra at 59.15 [2]. LUMBARD, Chief Judge (concurring) : I concur with the result reached by my Brother Anderson in this case, but I do so chiefly on the following basis. A system which requires the unanimous verdict of a jury of twelve can function satisfactorily in most cases only because most jurors are reasonable men and women, and after a certain amount of discussion has produced a large majority in favor of one view, those in the minority may be willing to join the majority in the belief that if so many other reasonable people have a contrary view, the views of the minority may well be mistaken. Instructions to the jurors in both state and federal courts stress the importance of jurors listening to the views of one another and making allowance for the fact that there can be a reasonable difference of opinion. Moreover," }, { "docid": "870251", "title": "", "text": "106 (1953). Only in such cases does the desirability of present review outweigh the policies which confine appeals to the review of final orders. See 6A J. Moore, supra at 59.15 [2]. LUMBARD, Chief Judge (concurring) : I concur with the result reached by my Brother Anderson in this case, but I do so chiefly on the following basis. A system which requires the unanimous verdict of a jury of twelve can function satisfactorily in most cases only because most jurors are reasonable men and women, and after a certain amount of discussion has produced a large majority in favor of one view, those in the minority may be willing to join the majority in the belief that if so many other reasonable people have a contrary view, the views of the minority may well be mistaken. Instructions to the jurors in both state and federal courts stress the importance of jurors listening to the views of one another and making allowance for the fact that there can be a reasonable difference of opinion. Moreover, a reasonable juror knows that even though he might prefer to have the jury reach a different result, it is also important that it reach some result. Hence he does not hesitate to reexamine his original views and to give up his opinion if convinced, by the fact that everyone else has contrary views, that his opinion is erroneous. He seeks primarily to agree upon a verdict so long as he can do so without violating his individual judgment and conscience. This commonsense view of getting things decided usually prevails in all groups under circumstances in which there must be a free expression of opinion. Indeed it is certainly a proper reason for concurring with the majority that the doubting juror is the only one of a different view from his eleven fellow jurors, as was the case here. Were the court permitted to examine jurors to elicit whether they had surrendered their views, there would be few verdicts which could withstand such examination. Thus, there is every reason to encourage full and free discussion" }, { "docid": "2637692", "title": "", "text": "trial_ United States v. Allain, 671 F.2d 248, 255 (7th Cir.1982) (quoting United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979)); see also United States v. Zambrana, 841 F.2d 1320, 1340 (7th Cir.1988) (government's failure to disclose exculpatory evidence until just prior to commencement of trial did not violate Brady); Allain, 671 F.2d at 254-55 (no Brady violation where government disclosed evidence favorable to defense on day before trial began). . The Silvern instruction, which was read to the jury as part of the formal jury instructions, is derived from United States v. Silvern, 484 F.2d 879, 883 (7th Cir.1973) (en banc). The district court in this case gave the instruction as follows: The verdict here must represent the considered judgment of each juror. Your verdict, whether it be guilty or not guiltyf,] must be unanimous. You should make every reasonable effort to reach a verdict. In doing so you should consult with one another, express your own views and listen to the opinions of your fellow jurors. Discuss your differences with an open mind. Do not hesitate to re-examine your own views and change your opinion if you come to believe it is wrong. But you should not surrender your honest beliefs about the weight or effect of evidence solely because of the opinions of your fellow jurors or for the purpose of returning a unanimous verdict. The 12 of you should give fair and equal consideration to all of the evidence and deliberate with the goal of reaching an agreement which is consistent with the individual judgment of each juror. You are impartial judges of the facts. Your sole interest is to determine whether the government has proved its case beyond a reasonable doubt. Tr. at 3715; see United States v. Byrski, 854 F.2d 955, 958 n. 4 (7th Cir.1988). . Cf. United States v. D'Antonio, 801 F.2d 979, 983 (7th Cir.1986) (jury indicated inability to reach a verdict after only three hours of deliberation; no abuse of discretion where court sent jury a note" }, { "docid": "23040857", "title": "", "text": "be a reasonable difference of opinion. Grace Lines, Inc. v. Motley, 439 F.2d 1028, 1033 (2d Cir.1971) (Lumbard, C.J., concurring). The instructions here fall far short of those sustained in e.g., United States v. Corcione, 592 F.2d 111, 117 n. 5 (2d Cir.), cert. denied, 440 U.S. 975, 99 S.Ct. 1545, 59 L.Ed.2d 974 (1979) (after jury deadlocked on criminal charge, trial judge instructed jury that it should “consult with one another and ... deliberate with a view to reaching agreement if you can possibly do so”); United States v. Robinson, 560 F.2d 507, 511 n. 6 (2d Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978) (jury instructed that “[i]t is important that a decision ... be reached here, and I really see no good reasons why a decision cannot be reached”). Litton was entitled to a jury determination on all of its claims and we do not believe the trial court judge erred either in resubmitting the claims or in instructing the jury as he did. There is no factual or logical basis for AT & T’s arguments that resubmission of these questions tipped the balance in Litton’s favor. have ever had.... You have been a vindication of the jury system and all that it means. C. AT & T’s Noerr-Pennington Claims According to AT & T, the “fundamental error that pervaded the trial of this case was the failure of the trial court to recognize that the principal ... conduct upon which the judgment is based ... was protected” under the doctrine developed in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). AT & T Brief at 43. AT & T argues that both its opposition to certification standards and its original filing of the interface tariffs should not have been submitted to the jury because this conduct did not, as a matter of law under the evidence adduced by Litton, fall within the only exception" }, { "docid": "3018387", "title": "", "text": "judge did not err when he instructed the jury to continue its deliberations even though he was aware of a divided preliminary vote by the jurors); United States v. Robinson, 560 F.2d 507, 516-18 (2d Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). Thus, we conclude that the trial judge’s instructions to the jury to “continue your deliberations” were entirely proper and not in error. The appellants further argue that the district court erred when it twice declined to declare a mistrial after the jury announced that it was “deadlocked.” “The decision to grant a mistrial is within the broad discretion of the trial judge and is to be made in view of all the circumstances of the case.” United States v. Allen, 797 F.2d 1395, 1400 (7th Cir.), cert. denied, 479 U.S. 856, 107 S.Ct. 196, 93 L.Ed.2d 128 (1986); D’Antonio, 801 F.2d at 983. In denying the motions for a mistrial the district court found that the jury had deliberated for a very short time, perhaps as little as nine hours over four days, in comparison to the length of the trial, fourteen weeks, and that it was not hopelessly deadlocked. See id. (finding no abuse of discretion where the trial court denied a motion for a mistrial and instructed the jury to continue its deliberations where it reasonably believed that the jury had not devoted adequate time to its deliberations). The district court’s determination that the jury was not hopelessly deadlocked after only four days was certainly reasonable given the extensive length of the trial and the multiple defendants involved. There was no abuse of discretion in the district court’s refusal to grant a mistrial. V. Fischer argues that the district court erred under Federal Rule of Evidence 403 in admitting testimony by an informant, C.M. Stewart, that Fischer imported 15 tons of marijuana to the United States in 1981. Fischer was not charged with any criminal offense as a result of that activity. The trial court overruled Fischer’s objection and concluded that the evidence was admissible to show that Fischer intended" }, { "docid": "23566001", "title": "", "text": "United States v. Robinson, 560 F.2d 507, 517 (2d Cir.1977) (in banc) (citing United States v. Green, 523 F.2d 229, 236 (2d Cir.1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976)), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). Appellants contend that the Allen charges in this case were improperly coercive, noting especially that two such charges were given. They also assert that the district court erred in refusing to let defense counsel review and comment upon the initial charge before it was delivered to the jury, despite an explicit request by counsel that this be done. We note first that the initial Allen charge responded to a jury note indicating that a juror refused to vote, rather than that one or more votes had resulted in a jury deadlock (the usual situation calling for an Allen charge). Cf. United States v. Roman, 870 F.2d 65, 77 (2d Cir.) (followup instruction the “first real Allen charge, since the court’s response to the jury’s prior note was merely a clarification of the jurors’ individual responsibilities without an exhortation that they reach a decision”), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). In any event, we do not regard a repeated Allen charge as inevitably coercive. See id.; United States v. O’Connor, 580 F.2d 38, 44 (2d Cir.1978); Robinson, 560 F.2d at 517-18. In this case, moreover, the district court included in both instructions the sort of cautionary language counselling jurors not to surrender any conscientiously held views that we have usually deemed to negate coercion. See, e.g., United States v. Burke, 700 F.2d 70, 80 (2d Cir.1983), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983); United States v. Valencia, 645 F.2d 1158, 1167 (2d Cir.1980); United States v. Brown, 582 F.2d 197, 202 (2d Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978); Robinson, 560 F.2d at 517. Most fundamentally, however, it is clear at least with the aid of hindsight that the single juror who was holding out against a" }, { "docid": "23079873", "title": "", "text": "to coerce the jury into reaching a verdict. Two aspects of the instruction seem particularly improper. First, the trial judge stressed that: the trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution____ Obviously, another trial would only serve to increase the costs to both sides, (emphasis added). The practical effect of such an instruction is to discourage jurors in the minority and to pressure them to abandon their honestly held beliefs, not in response to considerations regarding the guilt or innocence of the defendant, but in response to the expediency of saving expenses. By stating that “obviously” the “only” effect of a new trial would be “to increase ... costs,” the judge effectively tells the minority that holding out for their position is pointless, because the majority view will prevail on retrial. Second, the Allen charge in this case included the following language: [I]f a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again and most thoughtfully whether you should accept the weight and sufficiency of the evidence which fails to convince your fellow jurors beyond a reasonable doubt. Because this instruction asks jurors to discount their views if they are in the minority or in the majority, it virtually guarantees jury confusion. “Such a charge is so difficult to comprehend that ... it is ‘an invitation to frolic with Alice in Wonderland.’ ” State v. Nicholson, 315 So.2d 639, 642 (La.1975) (quoting United States v. Fioravanti, 412 F.2d 407, 417 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969)). This instruction can intimidate individual jurors. After hearing this confusing instruction, a juror will likely remember only that the judge wants them to reach a verdict and that" }, { "docid": "6195629", "title": "", "text": "each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. This and other courts have long gone beyond the holding in Allen and have developed their own means of instructing deadlocked juries. See, e.g., United States v. Silvern, 484 F.2d 879, 883 (7th Cir.1973); United States v. Brown, 411 F.2d 930, 933-34 (7th Cir.1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970). . This court in Silvern set forth a procedure for giving supplemental instructions to a deadlocked jury: If a supplemental instruction is deemed necessary and provided that the following instruction has been given prior to the time the jury has retired, it may be repeated: The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender" }, { "docid": "3018386", "title": "", "text": "instructed the jury to continue deliberations for the time being, but informed the jurors that it would call them out later. See id. This court found that the instruction was “noncommittal” and not coercive. See United States v. Sblendorio, 830 F.2d 1382 (7th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988) (upholding an instruction that differed from that of Silvern where early in the deliberations one juror stated that he believed the evidence insufficient to convict any defendant on any count). The appellants claim that this case is different from D Antonio and Thibodeaux because the district court knew that there was one holdout juror when it instructed the jury to continue its deliberations. We are unable to see how that makes any difference; the instruction simply did not influence the jurors to find the appellants guilty or not guilty. Indeed, the holdout juror remained free to persuade the other jurors to acquit the appellants. See United States v. Warren, 594 F.2d 1046, 1049-50 (5th Cir.1979) (holding that the trial judge did not err when he instructed the jury to continue its deliberations even though he was aware of a divided preliminary vote by the jurors); United States v. Robinson, 560 F.2d 507, 516-18 (2d Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). Thus, we conclude that the trial judge’s instructions to the jury to “continue your deliberations” were entirely proper and not in error. The appellants further argue that the district court erred when it twice declined to declare a mistrial after the jury announced that it was “deadlocked.” “The decision to grant a mistrial is within the broad discretion of the trial judge and is to be made in view of all the circumstances of the case.” United States v. Allen, 797 F.2d 1395, 1400 (7th Cir.), cert. denied, 479 U.S. 856, 107 S.Ct. 196, 93 L.Ed.2d 128 (1986); D’Antonio, 801 F.2d at 983. In denying the motions for a mistrial the district court found that the jury had deliberated for a very short time, perhaps as little" }, { "docid": "23242596", "title": "", "text": "Is that clear enough to you? Juror Carnevale: Yes, your Honor. The Court: All right. The Clerk: Do you find for Star Chopper Company, Inc. or Advanced Materials Systems, Inc.? Juror Carnevale: Advanced Materials Systems. The trial judge handled the matter properly. It is the court’s function to determine solely whether the verdict represents the juror’s position; the court should not inquire into the reasoning process or motivation behind the verdict. See Grace Lines, Inc. v. Motley, 439 F.2d 1028, 1031-1033 (2d Cir. 1971); United States v. Grieco, 261 F.2d 414, 415-416 (2d Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572 (1959). The day following the return of the verdict, a conference was held among Juror Carnevale, counsel, and the district judge. Juror Carnevale then explained that she had not wanted to grant a verdict in favor of AMS, but that the other jurors had convinced her that the law favored a verdict for AMS. She, therefore, returned a verdict for AMS because the jurors had convinced her that “you have to go by the law, not what you feel.” This falls far short of a showing of force or coercion by other members of the jury. The rule that a juror will not be heard to impeach his own verdict was aptly applied by the district court here. McDonald v. Pless, 238 U.S. 264, 269, 35 S.Ct. 783, 59 L.Ed. 1300 (1914). No impropriety has been alleged such as to warrant the setting aside of the verdict. “The verdict can stand if all of the jurors concur in it even though one or more may have done so reluctantly only out of deference to the views of the others and to avoid a hung jury.” 9 Wright and Miller, Federal Practice and Procedure § 2504 at 491 (1971). Proceeding to another of defendant’s claims, we hold that the court properly granted in part third-party defendants’ motion for summary judgment. As discussed supra in the section of this opinion dealing with choice of law, the court correctly ruled that, under Massachusetts law, neither third-party defendant" }, { "docid": "23040856", "title": "", "text": "that it was likely to resolve these questions in Litton’s favor simply does not follow. Nor do we find anything coercive in the trial judge’s instructions. The jurors were informed that their answers to the questions were “important” and that they should listen to the views of their fellow jurors without abandoning their own conscientiously held views. Far from being coercive, this instruction was completely in keeping with the recognition that: A system which requires the unanimous verdict of a jury ... can function satisfactorily in most cases only because most jurors are reasonable ... and after a certain amount of discussion has produced a large majority in favor of one view, those in the minority may be willing to join the majority in the belief that if so many other reasonable people have a contrary view, the views of the minority may well be mistaken. Instructions ... in both state and federal courts stress the importance of jurors listening to the views of one another and making allowance for the fact that there can be a reasonable difference of opinion. Grace Lines, Inc. v. Motley, 439 F.2d 1028, 1033 (2d Cir.1971) (Lumbard, C.J., concurring). The instructions here fall far short of those sustained in e.g., United States v. Corcione, 592 F.2d 111, 117 n. 5 (2d Cir.), cert. denied, 440 U.S. 975, 99 S.Ct. 1545, 59 L.Ed.2d 974 (1979) (after jury deadlocked on criminal charge, trial judge instructed jury that it should “consult with one another and ... deliberate with a view to reaching agreement if you can possibly do so”); United States v. Robinson, 560 F.2d 507, 511 n. 6 (2d Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978) (jury instructed that “[i]t is important that a decision ... be reached here, and I really see no good reasons why a decision cannot be reached”). Litton was entitled to a jury determination on all of its claims and we do not believe the trial court judge erred either in resubmitting the claims or in instructing the jury as he did. There is no" }, { "docid": "23374217", "title": "", "text": "jurors, or for the mere purpose of returning a verdict. (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals. Subparagraph (V) was not included in the American Bar Association recommended charge. . It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but to do so only after an impartial consideration of the evidence in the ease with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. In the prevailing opinion the argument is advanced that by allowing the delivery of this instruction Fioravanti substantially returns to the district judges the discretion to deliver a charge which it had just purportedly outlawed. I do not so read that case. In appropriate circumstances the delivery of the recommended well-balanced instruction would not have the harsh consequences implicit in an Allen-type charge. This recommended charge clearly apprises the entire panel that it should reevaluate its position with a view to reaching a decision. It is in no way aimed at the minority and defuses the dynamite of supplemental Allen-type charges. . Courts have held that Allen-type charges are coercive: if the trial judge failed to state that it was also the majority’s duty to listen to the minority, United States v. Pope, 415 F.2d 685 (8th Cir. 1969); United States v. Smith, 353 F.2d 166 (4th Cir. 1965); Mangan v. Broderick" }, { "docid": "23158406", "title": "", "text": "the giving of the charge or to its language, the court instructed the jury, in pertinent part, as follows: It is desirable if a verdict can be reached, but your verdict must reflect the conscientious judgment of each juror, and under no circumstance must any juror yield his or her conscientious judgment. ... [N]o juror must vote for any verdict unless, after full discussion, consideration of the issues and exchanging of views, it does represent his or her considered judgment. The court followed by reading language from Allen and sent the jury back for more deliberations. Some three hours later, the jury returned its verdict, convicting Roman on all counts submitted to it. Roman contends that he is entitled to a new trial on the ground that the court’s full Allen charge improperly coerced the jurors into reaching a guilty verdict. We reject this contention. Since Roman failed to object to the charge, it is ground for reversal only if it constituted “[pjlain error[ ],” Fed.R.Crim.P. 52(b), and we find no plain error here. This Circuit has viewed “[t]he propriety of an Allen-type charge [as] depending] on whether it tends to coerce undecided jurors into reaching a verdict by abandoning without reason conscientiously held doubts.” United States v. Robinson, 560 F.2d 507, 517 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). And though we have recognized that “the chances of coercion may increase with each successive appeal by the court to the jurors to try to reach a verdict,” we have been “unwilling to hold that a second Allen-type charge is error per se.” Id. In the present case, the substance of the Allen charge read in response to the jury’s second note was entirely proper. Further, this was the first real Allen charge, since the court’s response to the jury’s prior note was merely a clarification of the jurors’ individual responsibilities without an exhortation that they reach a decision. Given the fact that even a second charge imploring a decision would not be per se error, we hold that the court’s" }, { "docid": "17858418", "title": "", "text": "simply repeats those precepts that a trial court almost invariably uses to guide the jurors’ deliberations in its original charge. The emphasis of such a charge is that a verdict works in the best interests of the prosecution and the defendant. See Hynes, 424 F.2d at 757. Whether an Allen charge was appropriate in a given case hinges on whether it tends to coerce undecided jurors into reaching a verdict. Coercion may be found when jurors are encouraged to abandon, without any principled reason, doubts that any juror conscientiously holds as to a defendant’s guilt. See United States v. Robinson, 560 F.2d 507, 517 (2d Cir.1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). At the same time, such a charge is helpful and not coercive when it only expresses encouragement to the jurors to reach a verdict, if possible, to avoid the expense and delay of a new trial. See United States v. Bermudez, 526 F.2d 89, 100 (2d Cir.1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). Sanchez maintains that the Allen charge was patently coercive because the jury reached a verdict after only an hour of further deliberations following that charge. The length of time it takes a jury to reach a verdict after an Allen charge has been delivered is not a factor logically to be considered in determining whether the charge should have been given in the first place. In Hynes, for example, the jury returned a verdict five minutes after the Allen charge was given. 424 F.2d at 758. The appropriate question instead is whether the district court instructed the jury as to the “necessity on the part of each juror to adhere to his [or her] own judgment.” Id. The supplemental charge here was given after the jury had deliberated for 11 days in an exceedingly complex, multi-defendant trial. We agree with Sanchez that this jury was particularly conscientious in its deliberation and very articulate in its communications with the court. But unlike Sanchez, we think these traits aided this jury in understanding" } ]

[ { "docid": "22906417", "title": "", "text": "an amended complaint “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), and should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Here, the district court believed it would be futile to allow Milanese to amend his complaint because the proposed claim of non-compliance with the FHSA could not withstand an inevitable motion for summary judgment. Milanese argues that the district court applied the wrong standard by measuring the proposed amendment against a summary judgment yardstick. He contends that a plaintiff should be allowed to amend his complaint so long as the proposed complaint on its face states a valid claim, and could therefore withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Milanese is incorrect. It is true that when a cross-motion for leave to file an amended complaint is made in response to a motion to dismiss under Fed.R.Civ.P. 12(b)(6), leave to amend will be denied as futile only if the proposed new claim cannot withstand a 12(b)(6) motion to dismiss for failure to state a claim, i.e., if it appears beyond doubt that the plaintiff can plead no set of facts that would entitle him to relief. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). However, the rule is different where, as here, the cross-motion is made in response to a Fed.R.Civ.P. 56 motion for summary judgment, and the parties have fully briefed the issue whether the proposed amended complaint could raise a genuine issue of fact and have presented all relevant evidence in support of their positions. In the latter situation, even if the amended complaint would state a valid claim on its face, the court may deny the amendment as futile when the evidence in support of the plaintiffs proposed new claim creates no triable issue of fact and the defendant would be entitled to judgment as a matter of law under Fed. R.Civ.P. 56(c). See Azurite Corp. v. Amster & Co., 844 F.Supp. 929, 939 (S.D.N.Y.1994)" } ]

[ { "docid": "2077724", "title": "", "text": "“permissive” one that is informed by a “strong preference for resolving disputes on the merits.” See Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir.2011) (citing New York v. Green, 420 F.3d 99, 104 (2d Cir.2005)); see also Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.1999) (referring to the “relaxed standard” for motions to amend). Rule 15(a) provides that leave to amend shall be “freely give[n] ... when justice so requires.” Fed.R.Civ.P. 15(a)(2). The “circumstances and terms upon which such leave is to be ‘freely given’ is committed to the informed, careful judgment and discretion of the Trial Judge as he superintends the development of a cause toward its ultimate disposition.” Freeman v. Continental Gin Co., 381 F.2d 459, 468 (5th Cir.1967) (internal citations omitted). The Supreme Court has stated that absent undue delay, bad faith, undue prejudice, or futility, the “mandate” under Fed.R.Civ.P. 15(a)(2) to freely grant leave to amend “is to be heeded.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also AEP Energy Servs. Gas Holding Co. v. Bank of Am. N.A., 626 F.3d 699, 725 (2d Cir.2010) (“The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith.”) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993)). If, on the other hand, the proposed amendment “fails to state a claim or would be subject to a successful motion to dismiss,” or would cause undue delay, bad faith, or undue prejudice, a motion to amend may be denied. Kirk v. Heppt, 423 F.Supp.2d 147, 149 (S.D.N.Y.2006); see also Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir.2002) (leave to amend should be denied where an amendment to a pleading is futile, namely that “the proposed claim could not withstand a motion to dismiss”). Thus, the standard for leave to amend, while permissive, is by no means “automatic,” Klos v. Haskell, 835 F.Supp. 710, 715 (W.D.N.Y.1993), or a “mechanical absolute.” Freeman v. Continental Gin Co.," }, { "docid": "6957499", "title": "", "text": "by written consent of the adverse party; and leave shall be freely given as justice so requires. Fed.R.Civ.P. 15(a); see also Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). A court should deny leave to amend only where such relief would cause undue delay, was sought in bad faith, or the Court concludes that the relief is futile or prejudicial to the non-moving party. DeFazio v. Wallis, No. 05 Civ. 5712, 2006 WL 4005577, at *1 (E.D.N.Y. Dec. 9, 2006). The decision to grant or deny a motion to amend rests within the sound discretion of the district court. Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir.2005); Zahra v. Toum of Sowthold, 48 F.3d 674, 685 (2d Cir.1995). A proposed amendment is futile when it fails to state a claim upon which relief can be granted. Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir.2002). Wyler-Wittenberg seeks to amend the complaint for the sole purpose of showing that the collective class in the instant action is comprised of plaintiffs who are not parties to Cerami and Swisher. However, this same tactic — seeking to amend the complaint to limit the class of FLSA plaintiffs — -was attempted and rejected by the court in Swisher. Swisher, No. 12-cv-00133, slip op. at 6. In support of her opposition to MetLife’s motion to stay, dismiss, or transfer the instant action, Wyler-Wittenberg relies heavily on her pending motion for leave to amend. The Court is cognizant that under Rule 15, leave to amend should be freely granted. However, the amendment that is presently sought would not change the outcome of the motion to stay, dismiss, or transfer the instant action, as the “first-filed” rule remains applicable regardless of whether Wyler-Wittenberg limits the FLSA claims to those individuals who have already opted into the instant action for the reasons stated previously. Thus, the Court denies Wyler-Wittenberg’s motion for leave to amend in its entirety. III. CONCLUSION For all the foregoing reasons, it is" }, { "docid": "16953055", "title": "", "text": "defendants’ motions plaintiffs seek leave to assert, in defense of the note counterclaims and third-party claims against SMC, various defenses, most of which have previously been raised affirmatively by the plaintiffs in their complaint. Defendants oppose that motion largely on the basis of futility, arguing that the defenses which the plain tiffs seek to add are facially lacking in merit. Motions for leave to amend are governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides, in pertinent part, that “leave shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). Under Rule 15(a), leave to amend ordinarily should be freely granted absent undue delay, bad faith, dilatory tactics, undue prejudice in being served with the proposed amended pleading, or futility. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Elma R.T. v. Landesmann Int’l Mktg. Corp., No. 98-CIV.3662, 2000 WL 297197, at *3 (S.D.N.Y. Mar. 22, 2000) (citing Foman). The defenses which plaintiffs and SMC have attempted to interpose by way of amended pleading include failure to state a claim upon which relief may be granted; fraud; accord and satisfaction; release; fraud in the inducement; prima facie tort; breach of contract; quasi contract; implied contract; quantum merit; unjust enrichment; bad faith; and unconseionability. Plaintiffs Exhibits (Dkt. No. 57) Exh. 17 ¶¶ 36-87. Except as relates to the first affirmative defense, which is non-controversial, defendants assert that the new affirmative defenses lack merit and that plaintiffs’ motion should therefore be denied on the basis of futility. In considering whether to grant a motion for leave to amend, the court may properly take into account the futility associated with the newly-added claims or defenses. Foman, 371 U.S. at 182, 83 S.Ct. at 230; Lucente, 310 F.3d at 258. Quite sensibly, a court may properly deny leave to amend when the claim or defense sought to be added would not withstand a likely motion to dismiss for failure to state a legally cognizable claim or defense. Lucente, 310 F.3d at 259. Accordingly, in ruling upon the motion I must address the facial" }, { "docid": "20408020", "title": "", "text": "“freely” given “when justice so requires,” Fed.R.Civ.P. 15(a), and “should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility,” Milanese v. Rush-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). While granting leave to amend is generally favored, “it is within the sound discretion of the court whether to grant leave to amend.” John Hancock Mut. Life. Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir.1994). A proposed amendment is futile if it “could not withstand a motion to dismiss pursuant to Rule 12(b)(6).” Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002). Thus, a court must deny a motion to amend if it does not contain enough factual allegations, accepted as true, to state a claim for relief that is “plausible on its face.” Riverhead Park Corp. v. Cardinale, 881 F.Supp.2d 376, 379 (E.D.N.Y.2012) (Spatt, J.) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (denying motion to add claims for malicious prosecution as futile); see also Hunter v. Deutsche Lufthansa AG, 863 F.Supp.2d 190, 202-03 (E.D.N.Y.2012) (Dearie, J.) (denying motion to add new claims and a new defendant as futile); Scottrade, Inc. v. BroCo Investments, Inc., 774 F.Supp.2d 573, 584 (S.D.N.Y.2011) (Holwell, J.) (denying motion to add claims for securities fraud as futile). Without addressing every change in Plaintiffs’ 193-page proposed TAC, this Court finds that the proposed amendments would be futile. For example, the TAC proposes to add claims under various state consumer protection laws for each state in which Plaintiffs reside or in which their loans originated or were serviced. TAC ¶¶ 471513. Plaintiffs also propose to add a cause of action for violation of Section 131(g) of the Truth in Lending Act, 15 U.S.C. § 1641(g). Letter Mot. to Amend Compl. at 2; TAC ¶¶ 514-16. However, since this Court has already concluded that Plaintiffs were misjoined, the addition of new claims for these Plaintiffs would be" }, { "docid": "14759729", "title": "", "text": "are asking for a ruling regarding a hypothetical pleading, that application must be denied. Federal courts do not render advisory opinions. Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). “[C]ourts have a duty to refrain from deciding issues whose resolution is not necessary to the disposition of a case.” United States v. Tomasi, 313 F.3d 653, 661-62 (2d Cir.2002) (Sotomayor, J., concurring). See also Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 17 (2d Cir.1993). The Plaintiffs also ask that they be allowed to re-plead their complaints in compliance with any order that this Court issues. In most instances, this would mean the filing of a second amended complaint. . Plaintiffs have no right to amend their. pleadings a second time. Denny v. Barber, 576 F.2d 465, 471 (2d Cir.1978). Under Rule 15, Fed.R.Civ.P., however, leave to amend shall be “freely given when justice so requires.” Generally, a party is allowed to amend its pleadings in the absence of a showing of “prejudice or bad faith.” Block v. First Blood Assoc., 988 F.2d 344, 350 (2d Cir.1992). The Second Circuit has observed, however, that a “district court need not allow itself to be imposed upon by the presentation of theories seriatim.” State Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir.1990). “Where it appears that granting leave to amend is unlikely to be productive ... it is not an abuse of discretion to deny leave to amend.” Lucente v. Int’l Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir.2002) (citation omitted). Thus, it is appropriate to deny leave to amend if the proposed amendment is futile. Id.; see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). An amendment may be futile if, for example, it'would not survive a motion to dismiss brought pursuant to Rule 12(b)(6), Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002), or if the claims the plaintiff seeks to add would be barred by the applicable statute of limitations, Grace" }, { "docid": "7377121", "title": "", "text": "was negligent in making this determination. Pasternack, 2011 WL 3478732, at *12-13. DISCUSSION I. STANDARD FOR GRANTING LEAVE TO AMEND Under the Federal Rules of Civil Procedure, leave to amend should be “freely give[n] ... when justice so requires.” Fed.R.Civ.P. 15(a)(2). District courts “ha[ve] broad discretion to decide whether to grant leave to amend.” Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir., 2000). A court may properly deny leave to amend in cases of “ ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc.’” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)); see also Murdaugh v. City of New York, No. 10 Civ. 7218(HB), 2011 WL 1991450, at *2 (S.D.N.Y. May 19, 2011) (“Although under Rule 15(a) of the Federal Rules of Civil Procedure leave to amend complaints should be ‘freely given,’ leave to amend need not be granted where the proposed amendment is futile.” (citations omitted)). An amendment is futile where it is legally insufficient on its face such that the amended claim could not survive a motion to dismiss. Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir.2002). A claim can only withstand a Rule 12(b)(6) motion, of course, if it contains sufficient facts to “ ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1960, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Delay alone, in the absence of bad faith or prejudice, is not a sufficient reason for denying a motion to amend. Ruotolo, 514 F.3d at 191. A court may, however, “deny leave to amend ‘where the motion is made after an inordinate delay, no satisfactory explanation is offered for the delay, and the amendment would prejudice’ other" }, { "docid": "14888829", "title": "", "text": "to amend principles The decision whether to grant or deny a motion for leave to amend a complaint is within the sound discretion of the Court, see, e.g., O’Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir.2002) (citation omitted); Krumme v. WestPoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir.1998) (citations omitted), though leave to amend should be “freely given when justice so requires,” Fed.R.Civ.P. 15(a). It is proper to permit an amendment to a complaint to “set[ ] forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” Fed.R.Civ.P. 15(d). A motion seeking leave to add such transactions or occurrences should be evaluated under the same liberal standard as a motion for leave to amend under Rule 15(a). See, e.g., 3 James Wm. Moore et ah, Moore’s Federal Practice § 15.30 (3d ed. 2000) (“The same principles that support the liberal amendment of pleadings also apply to supplemental pleadings [under Rule 15(d) ].”); Novak v. Nat’l Broad. Co., 724 F.Supp. 141, 145 (W.D.N.Y.1989) (“Although Rule 15(d) does not include Rule 15(a)’s mandate that leave to amend be freely given when justice so requires, the same standards apply to motions under both these subdivisions of Rule 15.”) (citation omitted). In determining whether leave to amend should be granted, the Court should consider the futility of the proposed amendment. See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir.2000). “An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). However, Second Circuit courts have also held that, in certain circumstances, it is appropriate to deny leave to amend where the proposed amendment could not withstand a motion for summary judgment. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (appropriate to deny" }, { "docid": "20767215", "title": "", "text": "Finally, even if Alexander had established good cause and there would be no prejudice, the amendments she proposes would be futile, as discussed infra. Rule 15 Standards: Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that “a party may amend [its] pleading ... by leave of court,” and that “leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a); see also Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.1999) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). In making its determination, the court considers factors such as undue delay, prejudice to the defendants, and futility of the proposed amendments. See Foman, 371 U.S. at 182, 83 S.Ct. 227; MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 962 (2d Cir.1998); Harrison v. NBD, Inc., 990 F.Supp. 179, 185 (E.D.N.Y.1998). Although amendments are generally favored because “they tend to facilitate a proper decision on the merits,” Blaskiewicz v. County of Suffolk, 29 F.Supp.2d 134, 137 (E.D.N.Y.1998) (citation omitted), ultimately, “it is within the sound discretion of the court whether to grant leave to amend.” John Hancock Mut. Life Ins. Co. v. Amerford Int’l Corp., 22 F.3d 458, 462 (2d Cir.1994) (citing Foman, 371 U.S. at 182, 83 S.Ct. 227). Usually, a proposed amendment is futile if it could not survive a Rule 12(b)(6) motion to dismiss for failure to state claim. But, when a motion to amend is made in response to a summary judgment motion, the court may deny the amendment as futile when the evidence in support of the plaintiffs proposed new claim creates no triable issue of fact, even if the amended complaint would state a valid claim on its face. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001); Stoner v. New York City Ballet Co., 2002 WL 523270, *23 n. 10 (S.D.N.Y. Apr. 8, 2002) (denying motion to amend to add claim that “might survive a motion to dismiss” but would “immediately be subject to dismissal on a motion for summary judgment.”) Here, both of Alexander’s proposed amendments" }, { "docid": "6957498", "title": "", "text": "of the claims involved in the instant action, as those asserted in Cerami and Swisher, transfer is appropriate. Thus, it is the decision of the Court that the instant action be transferred to the forum in which the first putative collective ■ arid class action was filed and remains pending. . C. As To Wyler-Wittenberg’s Motion For Leave To File An Amended Complaint As a final attempt to try and persuade the Court to depart from the “first-filed” rule, Wyler-Wittenberg moves for leave to file an amended complaint which would limit the FLSA portion of the complaint to the seventy-five people who have already consented to become a party in the class to date. For the following reasons, the motion for leave to amend is denied. Fed.R.Civ.P. 15(a) generally governs the amendment of pleadings, and provides in pertinent that: A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party’s' pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given as justice so requires. Fed.R.Civ.P. 15(a); see also Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). A court should deny leave to amend only where such relief would cause undue delay, was sought in bad faith, or the Court concludes that the relief is futile or prejudicial to the non-moving party. DeFazio v. Wallis, No. 05 Civ. 5712, 2006 WL 4005577, at *1 (E.D.N.Y. Dec. 9, 2006). The decision to grant or deny a motion to amend rests within the sound discretion of the district court. Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir.2005); Zahra v. Toum of Sowthold, 48 F.3d 674, 685 (2d Cir.1995). A proposed amendment is futile when it fails to state a claim upon which relief can be granted. Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir.2002). Wyler-Wittenberg seeks to amend the complaint for the" }, { "docid": "20350388", "title": "", "text": "so requires.” Fed.R.Civ.P. 15(a)(2). “Leave to amend, though liberally granted, may properly be denied for: ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.’ ” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)); see also Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002) (“One appropriate basis for denying leave to amend is that the proposed amendment is futile.”). “Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for the district court to deny the right to amend.” Ruotolo, 514 F.3d at 191 (internal quotation marks omitted); see also Anthony v. City of New York, 339 F.3d 129, 138 n. 5 (2d Cir.2003) (“[W]e have interpreted [Rule 15(a) ] in favor of allowing the amendment absent a showing by the non-moving party of bad faith or undue prejudice.”). Here, there is no indication that the proposed amendment would be futile. “A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.” O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). “Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994). Plaintiffs allege that Stephens failed to intercede by misrepresenting the coercive circumstances of Deskovic’s interrogation during his meetings with Bolen before trial, as well as when testifying at trial. As noted above, there are disputed issues of material fact as to whether Stephens heard McIntyre’s statements to Deskovie when Stephens was in the second room, and therefore whether Stephens knew that Deskovic’s confession" }, { "docid": "20350387", "title": "", "text": "(2d Cir.2006) (denying summary judgment on qualified immunity on state law malicious prosecution claim, noting that where “the record plainly reveals the existence of genuine issues of material fact relating to the qualified immunity defense[,] ... New York courts are no different” from federal courts). E. Failure to Intercede Claim (Count VIII) Deskovic alleges that Stephens is liable for failing to intercede to prevent the use of Deskovic’s coerced confession. (Pis.’ Opp’n 18.) In particular, Deskovic claims that Stephens was aware of McIntyre’s coercive tactics, and should have informed Bolen of the coercive circumstances of the interrogation. (Id. at 19.) Stephens claims that he did not hear the confession or McIntyre’s threats, and so he had no opportunity to intervene. (Defs.’ Reply 5.) 1. Leave to Amend First, as Plaintiffs now move to amend their complaint to add this charge as to Stephens, the Court must examine whether leave to amend should be granted. Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party shall be given leave to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Leave to amend, though liberally granted, may properly be denied for: ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.’ ” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)); see also Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002) (“One appropriate basis for denying leave to amend is that the proposed amendment is futile.”). “Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for the district court to deny the right to amend.” Ruotolo, 514 F.3d at 191 (internal quotation marks omitted); see also Anthony v. City of New York, 339 F.3d 129, 138 n. 5 (2d Cir.2003) (“[W]e have interpreted [Rule 15(a) ] in favor of allowing the amendment" }, { "docid": "22906416", "title": "", "text": "a state negligence claim lies for failure to comply with the federal, FHSA-mandated labeling requirements. Wallace v. Parks Corp., 212 A.D.2d 132, 140, 629 N.Y.S.2d 570, 576 (4th Dep’t 1995). II. Leave to Amend the Complaint In opposition to Rust-Oleum’s motion for summary judgment, Milanese cross-moved for leave to amend his complaint to add a claim for non-compliance with the FHSA. The district court denied this motion, concluding that the amendment would be futile because, as a matter of law, the Primer can complied with all necessary labeling provisions of the FHSA and related regulations. We disagree. We review the district court’s denial of leave to file an amended complaint for abuse of discretion. Jones v. New York Div. of Military and Naval Affairs, 166 F.3d 45, 49 (2d Cir.1999). A district court abuses its discretion if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Leave to file an amended complaint “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), and should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Here, the district court believed it would be futile to allow Milanese to amend his complaint because the proposed claim of non-compliance with the FHSA could not withstand an inevitable motion for summary judgment. Milanese argues that the district court applied the wrong standard by measuring the proposed amendment against a summary judgment yardstick. He contends that a plaintiff should be allowed to amend his complaint so long as the proposed complaint on its face states a valid claim, and could therefore withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Milanese is incorrect. It is true that when a cross-motion for leave to file an amended complaint is made in response to a motion to dismiss under Fed.R.Civ.P. 12(b)(6), leave to amend will be denied as futile" }, { "docid": "14888830", "title": "", "text": "(“Although Rule 15(d) does not include Rule 15(a)’s mandate that leave to amend be freely given when justice so requires, the same standards apply to motions under both these subdivisions of Rule 15.”) (citation omitted). In determining whether leave to amend should be granted, the Court should consider the futility of the proposed amendment. See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir.2000). “An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). However, Second Circuit courts have also held that, in certain circumstances, it is appropriate to deny leave to amend where the proposed amendment could not withstand a motion for summary judgment. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (appropriate to deny motion for leave to amend filed in response to summary judgment motion where proposed new claims would not survive summary judgment); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990) (affirming district court’s decision denying leave to amend complaint where facts demonstrated proposed amendments failed as a matter of law); Stoner v. N.Y.C. Ballet Co., No. 99 Civ. 0196, 2002 WL 523270, at *14 n. 10 (S.D.N.Y. Apr.8, 2002) (denying motion for leave to amend seeking to add claim which “might survive a motion to dismiss” because “the claim would ... be subject to dismissal on a motion for summary judgment”); 131 Maine St. Assocs. v. Manko, 179 F.Supp.2d 339, 345 n. 5 (S.D.N.Y.2002) (“leave to amend will be denied if the proposed amended complaint could not survive a summary judgment motion”); Azurite Corp. v. Amster & Co., 844 F.Supp. 929, 939 (S.D.N.Y.1994) (denying plaintiff leave to amend complaint where proposed amendment “would be futile because the factual foundations of [plaintiffs] new allegations are insufficient, as a matter of law, to withstand defendants’ motion" }, { "docid": "1589517", "title": "", "text": "amend a complaint to assert claims against additional defendants “should be denied only because of undue delay, bad faith, futility, or prejudice to the non-moving party, and the decision to grant or deny a motion to amend rests within the sound discretion of the district court.” DeFazio v. Wallis, No. 05-CV-5712, 2006 WL 4005577, at *1 (E.D.N.Y. Dec. 9, 2006) (citing Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir.2005); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995)). A proposed amendment is futile if the proposed claim could not withstand a Rule 12(b)(6) motion to dismiss. Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir.2002). In considering a Rule 12(b)(6) motion to dismiss, “‘[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’ ” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Further, the Court must “accept all of the plaintiffs factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.” Starr v. Georgeson S’holder, Inc., 412 F.3d 103, 109 (2d Cir.2005); Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999). Here, the Defendants oppose the motion to add B. Blacktop Reitman, Inc. and B. Reitman, Inc. as defendants on separate grounds. As to B. Blacktop Reitman, Inc., the Defendants argue that the amendment is: (1) untimely, in bad faith, and prejudicial because the Plaintiffs have been aware that B. Reitman Blacktop, Inc. was their employer since the commencement of this action and (2) futile as to plaintiffs Addison and Vanderheydt because the FLSA claims against B. Reitman Blacktop, Inc. are time-barred by the statute of limitations. With regard to B. Reitman, Inc., the Defendants contend that the amendment is futile because the Plaintiffs have failed to allege that B. Reitman, Inc. was their “employer”. Before addressing the sufficiency of the motions against" }, { "docid": "524781", "title": "", "text": "the part of movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be ‘freely given.’ ” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also McCarthy, 482 F.3d at 200 (“A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party. However, ‘[o]utright refusal to grant the leave without any justifying reason for the denial is an abuse of discretion.’ ”) (quoting Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir.2002)) (internal citation omitted). Here, defendant does not argue that it would be unduly prejudiced or that there was undue delay in seeking amendment; rather, defendant asserts that the proposed amendment would be futile. “An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir.2002) (citing Dougherty v. N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002)). Dismissal pursuant to Rule 12(b)(6) is warranted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004) (internal quotations omitted). Thus, the appropriate inquiry is “not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168, 177 (2d Cir.2004) (internal quotation marks omitted). In analyzing whether the proposed amendment is futile, the Court accepts all factual allegations set forth in the proposed amended complaint as true and draws all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enterp., 448 F.3d 518, 521 (2d Cir.2006) (setting forth the standard for reviewing a motion to dismiss for failure to" }, { "docid": "20369034", "title": "", "text": "to amend). Rule 15(a) provides that leave to amend shall be “freely give[n] ... when justice so requires.” Fed.R.Civ.P. 15(a)(2). “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Williams, 659 F.3d at 213 (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). However, “[a] district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007); see also AFP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 726 (2d Cir.2010) (“Leave to amend may be denied on grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to raise triable issues of fact.”). In addition, an amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6). Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). IV. Discussion A) The Federal Copyright Claim is Dismissed As to All Defendants—Count I To withstand a motion to dismiss pursuant to Rule 12(b)(6), a claim of copyright infringement must meet the pleading requirements of Rule 8. Fed.R.Civ.P. 8; see Franklin Elec. Publishers, Inc. v. Unisonic Prods. Corp., 763 F.Supp. 1, 4 (S.D.N.Y.1991). In order to comply with Rule 8, a complaint alleging copyright infringement must state: “[1] which specific original works are the subject of the claim, [2] that plaintiff owns the copyright, [3] that the works have been registered in accordance with the copyright statute[,] and [4] by what acts and during what time defendant has infringed the copyright.” Id.; Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y.1992) “[A]t this stage of the litigation, a plaintiff need only give the opposing party fair notice of what the plaintiffs claim is and the grounds on which it rests.” Capitol Records, Inc. v. Wings Digital" }, { "docid": "8291536", "title": "", "text": "the court, and further directs that “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a). “In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.— the leave sought should, as the rules require, be ‘freely given.’ ” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); accord McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-02 (2d Cir.2007). Here, Defendants do not argue that they would be unduly prejudiced by permitting the amendments or that there was undue delay by Plaintiff in seeking leave to amend. Rather, Defendants oppose the proposed amendments solely on the ground that such amendments would be futile. (See, e.g., Defs.’ Reply at 5.) “An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir.2002) (citing Dougherty v. N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002)); see also Chill v. Gen. Elec. Co., 101 F.3d 263, 272 (2d Cir.1996) (noting that “futility is a ‘good reason’ to deny leave to amend”); Ricciutiv. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991) (“When the plaintiff has submitted a proposed amended complaint, the district judge may review that pleading for adequacy and need not allow its filing if it does not state a claim upon which relief can be granted.”). Accordingly, the Rule 12(b)(6) standard applies both to Defendants’ motions to dismiss as well as to Plaintiffs cross-motion to amend. C. Securities Fraud “Securities fraud claims are subject to heightened pleading requirements that the plaintiff must meet to survive a motion to dismiss.” ATSI Commc’ns, 493 F.3d at 99. The heightened pleading requirements are set forth in Rule 9(b) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act" }, { "docid": "1589516", "title": "", "text": "(“Although Rule 21 ‘contains no restrictions on when motions to add or drop parties must be made, the timing of the motion may influence the court’s discretion in determining to grant it. Thus, the court typically will deny a request that comes so late in the litigation that it will delay the case or prejudice any of the parties to the action.”) (quoting 7 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, Civil 3d § 1688.1 at 510 (West 2001)). Rule 21 grants the court broad discretion to permit the addition of a party at any stage in the litigation. Sullivan v. West New York Residential, Inc., No. 01-CV-7847, 2003 WL 21056888, at *1 (E.D.N.Y. Mar. 5,2003). In deciding whether to permit the addition of defendants, courts apply the “same standard of liberality afforded to motions to amend pleadings under Rule 15.” Soler v. G & U, Inc., 86 F.R.D. 524, 528 (S.D.N.Y.1980) (quoting Fair Hous. Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y.1972)). Thus, leave to amend a complaint to assert claims against additional defendants “should be denied only because of undue delay, bad faith, futility, or prejudice to the non-moving party, and the decision to grant or deny a motion to amend rests within the sound discretion of the district court.” DeFazio v. Wallis, No. 05-CV-5712, 2006 WL 4005577, at *1 (E.D.N.Y. Dec. 9, 2006) (citing Aetna Cas. and Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir.2005); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995)). A proposed amendment is futile if the proposed claim could not withstand a Rule 12(b)(6) motion to dismiss. Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir.2002). In considering a Rule 12(b)(6) motion to dismiss, “‘[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’ ” Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir.2001) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Further, the" }, { "docid": "20408019", "title": "", "text": "at *8 (W.D.N.Y. Oct. 30, 2006) (Siragusa, J.) (quoting Pittman by Pittman v. Grayson, 149 F.3d 111, 122-23 (2d Cir.1998)). However, “[t]here is no independent tort of conspiracy in New York.” McCall v. Chesapeake Energy Corp., 509 Fed.Appx. 62, 65 (2d Cir.2013). If all of the underlying torts of which defendants are accused are dismissed, a claim for concerted-action liability “must also fail as a matter of law.” Id. In this case, the Court has dismissed all of Ms. Abraham’s substantive claims. Consequently, her claim for concert of action is likewise dismissed. III. Plaintiffs’ Motion to Amend On February 22, 2013, Plaintiffs requested a pre-motion conference, pursuant to this Court’s individual rules, to file a motion to further amend their complaint. Letter Mot. to Amend Compl., Dkt. No. 280. A proposed third amended complaint (“TAC”) was attached to the request. Id., Ex. 1. On February 28, 2013, this Court denied Plaintiffs’ request for the pre-motion conference, consequently denying Plaintiffs’ motion to amend. This opinion supplements that order. Leave to file an amended complaint should be “freely” given “when justice so requires,” Fed.R.Civ.P. 15(a), and “should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility,” Milanese v. Rush-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). While granting leave to amend is generally favored, “it is within the sound discretion of the court whether to grant leave to amend.” John Hancock Mut. Life. Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir.1994). A proposed amendment is futile if it “could not withstand a motion to dismiss pursuant to Rule 12(b)(6).” Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002). Thus, a court must deny a motion to amend if it does not contain enough factual allegations, accepted as true, to state a claim for relief that is “plausible on its face.” Riverhead Park Corp. v. Cardinale, 881 F.Supp.2d 376, 379 (E.D.N.Y.2012) (Spatt, J.) (quoting Bell Atl. Corp. v. Twombly, 550 U.S." }, { "docid": "14759730", "title": "", "text": "First Blood Assoc., 988 F.2d 344, 350 (2d Cir.1992). The Second Circuit has observed, however, that a “district court need not allow itself to be imposed upon by the presentation of theories seriatim.” State Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir.1990). “Where it appears that granting leave to amend is unlikely to be productive ... it is not an abuse of discretion to deny leave to amend.” Lucente v. Int’l Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir.2002) (citation omitted). Thus, it is appropriate to deny leave to amend if the proposed amendment is futile. Id.; see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). An amendment may be futile if, for example, it'would not survive a motion to dismiss brought pursuant to Rule 12(b)(6), Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002), or if the claims the plaintiff seeks to add would be barred by the applicable statute of limitations, Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir.2000). “When the moving party has had an opportunity to assert the amend ment earlier, but has waited until after judgment before requesting leave, a court may exercise its discretion more exactingly.” State Trading, 921 F.2d at 418. A finding of “bad faith” may be warranted where a party waited to see “how he would fare on the prior motion to dismiss.” Vine v. Beneficial Finance Co., 374 F.2d 627, 637 (2d Cir.1967) (denying leave to present a second Section 10(b) theory through an amended pleading). Leave to amend is also properly denied when the plaintiff had prior notice of what was required to file a complaint that did not contain the identified deficiencies and yet delayed in curing those deficiencies. Denny, 576 F.2d at 471. A failure to include a proposed amended pleading with a request to amend may indicate a lack of diligence and good faith. State Trading, 921 F.2d at 418. The November 21 Opinion gave the Plaintiffs, who are represented by the same counsel" } ]

[ { "docid": "2949050", "title": "", "text": "in interest. The proofs show that that company, upon the filing of the suit, immediately took charge and control of the ease through its attorney whom it employed and paid and who, in addition ,to filing an answer and interrogatories, made an investigation of the prior art in Washington and New York in preparation for trial. We think it was in privity with Riordan in that action. Penfield v. C. & A. Potts Co., 126 F. 475 (6 C. C. A.); Van Kannel Revolving Door Co. v. Winton Hotel (D. C.) 263 F. 988; Beyer Co. v. Fleisehmann Co., 15 F.(2d) 465 (6 C. C. A.); Carson Inv. Co. v. Anaconda. Copper Mining Co. (C. C. A.) 26 F.(2d) 651; Zip Mfg. Co. v. Pep Mfg. Co., 27 F.(2d) 219 (6 C. C. A.); Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294, 37 S. Ct. 506, 61 L. Ed. 1148. But it is said that the decree was not binding upon the Bryan Company because it was in the nature of a consent decree. We do not agree that it was a consent decree. The court required proofs of every matter put in issue by the answer, and while the decree was in the nature of a default decree, it was not the less binding upon the privies as well as the parties. It has been held that in a suit, in equity to restrain infringement of a patent and for an accounting, the defendant cannot again question the validity of the patent after a decree pro confesso establishing its validity. Thomson v. Wooster, 114 U. S. 104, 5 S. Ct. 788, 29 L. Ed. 105; Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683, 15 S. Ct. 733, 39 L. Ed. 859. And it has further been held that such a decree is conclusive of all matters that were litigated or could have been litigated, not only on the parties, but also on all those in' privity with them. American Bell Telephone Co. v. National Improved Telephone Co. (C. C.) 27 F. 663;" } ]

[ { "docid": "13356995", "title": "", "text": "in the patent litigation was planned for them. It was all part of the “campaign for damages.” It was the pursuit of the policy of molestation, of driving the appellant’s manufacturer out of business. The right of fair competition did not justify the acts committed. Evenson v. Spaulding, 150 F. 517, 9 L. R. A. (N. S.) 904 (C. C. A. 9). What the agents said and did was consistent with and in consequence of the instructions given to them, to advise the trade of the “sweeping decision” and to use the “decision as a tremendously powerful influence.” The widespread use of circulars with notices charging infringement, some followed by suit and .others not, and the subsequent suit against the Trig-a-lite lighter as an infringement, was inspired by a purpose to intimidate the Evans Case Company customers, to coerce them to refrain from purchasing from others, and to compel them to buy all automatic lighters from the appellee. Adriance, Platt & Co. v. Nat'l Harrow Co., 121 F. 827 (C. C. A. 2). Such inequitable conduct, after the decree of validity and infringement, is sufficient to deprive the appellee of its injunction and the accounting order to determine damages. See Alliance Securities Co. v. De Vilbiss Mfg. Co., 41 F.(2d) 668 (C. C. A. 6); De Forest Radio Tel. & Tel. Co. v. Radio Corp. of America (D. C.) 4 F.(2d) 134; Asbestos Shingle, S. & S. Co. v. H. W. Johns-Manville Co. (C. C.) 189 F. 611. In Keystone Driller Co. v. General Excavator Co., 290 U. S. 240, 54 S. Ct. 146, 147, 78 L. Ed. 293, the rule was stated that one coming into a court of equity must do so with clean hands, and, \"after quoting from Story’s Equity Jurisprudence (14th Ed.). § 98, that the court will refuse to interfere in Ms bill if he does not, the court said: “ ‘To aid a party in such a case would make this court the abetter of iniquity.’ Bein v. Heath, 6 How. 228, 247, 12 L. Ed. 416. And again: ‘A court of equity acts" }, { "docid": "21344734", "title": "", "text": "jurisdiction. The question of general equity jurisdiction, upheld by the court in Shaffer v. Carter et al., 252 U. S. 37, 40 S. Ct. 221, 64 L. Ed. 445, also relied upon by appellees, is not here involved. The issue is solely one of federal jurisdiction. In a number of cases this court has decided that where a patent is held valid and infringed, the unfair competition feature “arising out of that infringement may be included in an accounting for profits and damages, though the parties are citizens of the same state” [N. O. Nelson Mfg. Co. v. F. E. Myers & Bro. Co. (C. C. A.) 25 F.(2d) 659, 665; Detroit Showcase Co. v. Kawneer Mfg. Co. (C. C. A.) 250 F. 234, 239 ; K-W Ignition Co. v. Temco Electrie Motor Co. (C. C. A.) 243 F. 588, 591, and cases there cited], and we do not think that we need again pass upon the soundness of this doctrine, for it seems to us that the joinder in one bill of two entirely separate and distinct causes of action, under Equity Rule 26 (28 USCA § 723), even assuming that both are within the general equity jurisdiction of the court, is a very different matter from allowing relief in a patent infringement suit for unfair competition “arising out of that infringement” which is the subject of suit, and to which the unfair competition is therefore wholly incidental. In the first ease there is, in substance, the consolidation of two separate actions; in the second case this feature is absent. In the one, there should be federal jurisdiction of both causes of action; in the other, jurisdiction of the primary cause of action is probably enough. No contention is made on behalf of the plaintiffs that there was, or could have been, infringement by any of the defendants prior to the cancellation of the license agreement. An action for the recovery of royalties, it is also clear, is a suit to enforce a contract, and “the rule is well settled that, if the suit be brought to enforce or" }, { "docid": "23238698", "title": "", "text": "Ct. 734, 29 L. Ed. 898; Martinton v. Fairbanks, 112 U. S. 670, 5 S. Ct. 321, 28 L. Ed. 862; Sierra Land & L. S. Co. v. Desert Power & M. Co. (C. C. A. 9) 229 F. 982. However, a general finding has the effect of a general verdict of a jury, and no more, and, while certain earlier decisions were apparently to the contrary (Dirst v. Morris, 14 Wall. 484, 490, 20 L. Ed. 722; Mercantile Mut. Insurance Co. v. Folsom, 18 Wall. 237, 250, 253, 21 L. Ed. 827; Cooper v. Omohundro, 19 Wall. 65, 22 L. Ed. 47; Searcy County v. Thompson (C. C. A.) 66 F. 92, 96. See also Sierra Land & L. S. Co. v. Desert Power & M. Co., supra), it is now well settled that, by motion for judgment in his favor or by an application for a declaration of law that he is entitled to judgment, • a party may raise the question of law whether he is entitled to judgment upon all the evidence, and such question, if presented by a proper bill of exceptions, will be reviewed on appeal, notwithstanding a general finding in favor of the adverse party. Maryland Casualty Co. v. Jones, 279 U. S. 792, 795, 796, 49 S. Ct. 484, 73 L. Ed. 960; City of St. Louis v. Western Union Tel. Co., 148 U. S. 92, 96, 13 S. Ct. 485, 37 L. Ed. 380; Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478, 481, 482; Griffin v. Thompson (C. C. A. 5) 10 F. (2d) 127,128; Sartoris v. Utah Const. Co. (C. G. A. 9) 21 F.(2d) 1, 2; Searey County v. Thompson (C. C. A.) dissenting opinion, 66 F. 96, 99; Barnard v. Randle (C. C. A. 8) 110 F. 906, 909; Seep v. Ferris-Haggarty Co. (C. C. A. 8) 201 F. 893; Dunsmuir v. Scott (C. C. A. 9) 217 F. 200; Sierra L. & L. S. Co. v. Desert Power & M. .Co., supra. Rulings upon such a motion or application for a" }, { "docid": "4359176", "title": "", "text": "fault may be cured and anv remedy available allowed. St. Louis & S. F. R. R. Co. v. Spiller, 274 U. S. 304, 47 S. Ct. 635, 71 L. Ed. 1060; In re Morgenstern & Co., 57 F.(2d) 163 (C. C. A. 2); People of State of Ñew York v. Hopkins, 18 F.(2d) 731 (C. C. A. 2); Employers’ Corp. v. Astoria Co., 6 F.(2d) 945 (C. C. A. 2). But in the instant case the assets have been distributed and the receiver discharged. The custody of the assets by the bankruptcy court has ceased. Guaranty Trust Co. of New York v. McCabe, 250 F. 699 (C. C. A. 2). In the pleadings the appellants do not assert and the appellees do not deny actual notice of the bar order. In this state of the pleadings, the court below said that it must be taken as true that actual notice was not received, and that, in the absence of actual notice, the order was not a bar. It would seem, without deciding this question, that the allegation of notice by publication which has been approved as legally sufficient (St. Louis & S. F. R. R. Co. v. Spiller, 274 U. S. 304, 47 S. Ct. 635, 71 L. Ed. 3060) would create a presumption in favor of actual notice which would at least require the appellees by evidence to show the contrary. The bankruptcy court retained jurisdiction after the older of confirmation in order to carry out the composition. In re Everick Art Corp., 39 F.(2d) 765 (C. C. A. 2); In re Kalnitzsky Bros. & Oppenheim, 285 F. 652 (C. C. A. 2). No doubt the court in bankruptcy or equity may enjoin proceedings elsewhere in order to protect its decrees. Seaboard Corp. v. Ottinger, 50 F.(2d) 856, 77 A. L. R. 956 (C. C. A. 4); Chicago, R. I. & P. Ry. v. Lincoln Horse & Mule Co., 284 F. 955 (C. C. A. 8). But in the instant ease the custody of the property had long since been relinquished. Any effect of the bar order which might" }, { "docid": "13501920", "title": "", "text": "130, 90 N. W. 592; Huntington v. Jacob Haish Co., 190 Iowa, 1197, 181 N. W. 480; Emerson v. Pac. C. & N. Packing Co., 96 Minn. 1, 104 N. W. 573, 1 L. R. A. (N. S.) 445, 113 Am. St. Rep. 603, 6 Ann. Cas. 973; Holton v. Monarch Motor Car Co., 202 Mich. 271, 168 N. W. 539. We conclude that the evidence adduced measured up to the rule, and would have sustained a finding by the jury that Calkins suffered an actual loss and damage as a natural and proximate result of the alleged wrongful act of the Woolworth Company. Were the damages uncertain as to their measure or extent? The general rule is that, where the cause and existence of damages have been established with sufficient certainty, recovery will not be denied because they are difficult of ascertainment. Crichfield v. Julia (C. C. A. 2) 147 F. 65, 70, 71; Rule v. McGregor, 117 Iowa, 419, 90 N. W. 811, 812; Taylor v. Bradley, 4 Abb. Dec. (N. Y.) 363, 366; Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205, 4 N. E. 264, 266, 54 Am. Rep. 676; Bredemeier v. Pacific Supply Co., 64 Or. 576, 131 P. 312, 313; Westesen v. Olathe State Bank, 75 Colo. 340, 225 P. 837, 839; Bluegrass Cordage Co. v. Luthy, 98 Ky. 583, 33 S. W. 835, 837; American S. & R. Co. v. Riverside D. & S. Farm (C. C. A. 8) 236 F. 510, 515; Hetzel v. B. & O. R. R. Co., 169 U. S. 26, 37, 18 S. Ct. 255, 42 L. Ed. 648; U. S. Trust Co. v. O’Brien, 143 N. Y. 284, 287, 289, 38 N. E. 266, 267. In such cases, the amount may be fixed by the jury in the exercise of a sound discretion under proper instructions from the court. Pye v. Eagle Lake Lumber Co., 66 Cal. App. 584, 227 P. 193, 195; Manss-Owens Co. v. H. S. Owens & Son, 129 Va. 183, 105 S. E. 543, 549, 550; Prejean v. Delaware-Louisiana Fur Trapping" }, { "docid": "13501908", "title": "", "text": "if Cal-kins first submitted the bank building lease to the Woolworth Company, it was the duty .of the Woolworth Company to negotiate its lease therefor through Calkins. It is true that, in order to render the alleged contract actionable, Miekler and Cal-kins must have contemplated the assumption of legal rights and duties, and not the rendition of a gratuitous service on the part of Calkins. Tucker v. Pete Sheeran Bro. & Co., 155 Ky. 670, 160 S. W. 176, 178; Columbus, H. V. & T. Ry. Co. v. Gaffney, 65 Ohio St. 104, 61 37. E. 152, 154; Tank v. Rohweder, 98 Iowa, 154, 67 37. W. 106, 107; 9 Page on Contracts (2d Ed.) vol. 3, § 1446. The services which Calkins agreed to render under the alleged contract went further than the ordinary gratuitous services usually rendered by real estate brokers, in that Calkins obligated himself, not only to search for á location suitable to tbe Woolworth Company’s desires, but to first submit to the Wool-worth Company in preference to any other client all such locations found. We think the facts and circumstances disclosed hy the evidence would warrant a jury in finding an intent on the part of the parties to enter into a legal and binding contract. If it could be said that the contract in its inception lacked mutuality, it became binding upon the Woolworth Company after performance by Calkins, namely, after he found a suitable location and first submitted such location to the Woolworth Company. Storm v. U. S., 94 U. S. 76, 83, 24 L. Ed. 42; Chicago, M. & St. P. Ry. Co. of Idaho v. U. S. (C. C. A. 9) 218 F. 288, 301; Mississippi Glass Co. v. Franzen (C. C. A. 3) 143 F. 501, 507, 6 Ann. Cas. 707. We therefore conclude that the testimony made out a jprima facie case of a valid subsisting contract between Calkins and the Woolworth Company, and presented a controverted issue of fact for the determination of a jury. Second. Counsel for the Woolworth Company contend that there was m> contract, either" }, { "docid": "12803027", "title": "", "text": "ROSS, Circuit Judge. The appellant brought this suit in the court below for the alleged infringement of a patent issued to him May 1, 1906, for a certain invention pertaining to underreamers then in use in oil drilling; his application therefor having been filed -in the Patent Office February 25, 1905. Iiis bill also alleged that tho appellee E. C. Wilson subsequently and wrongfully on July 31,1906, procured an interfering patent covering the same invention, under which the appellee Wilson & Willard Manufacturing Company claims. The bill also alleged that the appellees infringed the appellant’s patent by manufacturing and selling underreamers embodying his invention within six years prior to the filing of the bill. Various defenses upon the merits were set up by the defendants, in addition to which they pleaded, and according to the record proved, laches on the part of the appellant, which latter defense was sustained by the court below, and the suit dismissed on that ground. The record shows that tho appellant well knew, during all of the more than 16 years, that the appellees were carrying on operations nnder their patent, resulting in numerous suits, where the validity of their patent was sustained, and whore they successfully maintained suits against infringers thereof. Union Tool Co. v. Wilson & Willard Mfg. Co. (D. C.) 237 F. 837; Wilson & Willard Mfg. Co. v. Union Tool Co. 249 F. 729, 161 C. C. A. 639; Union Tool Co. v. Wilson & Willard Mfg. Co., 248 U. S. 559, 39 S. Ct. 6, 63 L. Ed. 421; Wilson v. Union Tool Co. (D. C.) 237 F. 847; Union Tool Co. v. Wilson, 249 F. 736, 161 C. C. A. 646; Union Tool Co. v. Elihu C. Wilson, 248 U. S. 559, 39 S. Ct. 6, 63 L. Ed. 421; Union Tool Co. v. United States ( C. C. A.) 262 F. 431; Wilson v. Union Tool Co. (C. C. A.) 265 F. 669; Union Tool Co. v. Elihu C. Wilson, 259 U. S. 107, 42 S. Ct. 427, 66 L. Ed. 848. In the present ease, although the" }, { "docid": "22574372", "title": "", "text": "Ct. 164, 66 L. Ed. 325; Southern Ry. Co. v. Watts, 260 U. S. 519, 43 S. Ct. 192, 67 L. Ed. 375; Atlantic Coast Line Co. v. Doughton, 262 U. S. 413, 43 S. Ct. 620, 67 L. Ed. 1051; Chicago Great W. R. R. Co. v. Kendall, 266 U. S. 94, 45 S. Ct. 55, 69 L. Ed. 183. Yet it is not of universal application, for there is another familiar line of cases, where a charge of unfair competition is joined with a charge of patent or trade-mark infringement, in which, if the federal question is decided adversely to the plaintiff and no diversity of citizenship exists, the courts have held that there is no federal jurisdiction to pass upon the issue of unfair competition. Of sueh a situation the Supreme Court said, in Elgin National Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, 677, 21 S. Ct. 270, 45 L. Ed. 365, that, “if the trade-mark were not lawfully registered, then jurisdiction could not be maintained.” And this is substantially repeated in Leschen & Sons Rope Co. v. Broderick, 201 U. S. 166, 26 S. Ct. 425, 50 L. Ed. 710, and Stark Bros. Co. v. Stark, 255 U. S. 50, 52, 41 S. Ct. 221, 65 L. Ed. 496. See, also, Standard Paint Co. v. Trinidad Asph. Co., 220 U. S. 446, 456, 31 S. Ct. 456, 55 L. Ed. 536; Geneva Furniture Mfg. Co. v. S. Karpen & Bros., 238 U. S. 254, 35 S. Ct. 788, 59 L. Ed. 1295. Numerous lower court autliorities, mostly to the same effect, are gathered in Judge Denison’s interesting opinion in Vogue Co. v. Vogue Hat Co., 12 F.(2d) 991 (C. C. A. 6). See, also, Ingrassia v. A. C. W. Mfg. Corp., 24 F.(2d) 703 (C. C. A. 2); Schiebel Toy & Novelty Co. v. Clark, 217 F. 760 (C. C. A. 6); Kasch v. Cliett, 297 F. 169 (C. C. A. 5). Nowhere, so far as we are advised, has the Supreme Court alluded to the limitation which its pronouncement in the" }, { "docid": "21736147", "title": "", "text": "the interpretation of a pioneer patent, has a broad and generous signification, while its meaning is very narrow and limited when it conditions the construction of a patent for a slight and almost immaterial improvement. Adams Electric R. Co. v. Lindell R. Co., 77 F. 432, 440, 23 C. C. A. 223, 231, 40 U. S. App. 482, 498; Stirrat v. Manufacturing Co., 61 F. 980, 981, 10 C. C. A. 216, 217, 27 U. S. App. 13, 42; McCormick v. Talcott, 20 How. 402, 405, 15 L. Ed. 930; Railway Co. v. Sayles, 97 U. S. 554, 556, 24 L. Ed. 1053; Brill v. Car Co., 90 F. 666, 33 C. C. A. 213, 62 U. S. App. 276. But the great majority of patents falls between these two extremes. They are neither for pioneer inventions nor for improvements so slight as to be almost immaterial. While they do not evidence the first or the last step in the progress of the art to which they relate, they often mark signal advances and protect useful improvements. The doctrine of mechanical equivalents conditions the construction of all these patents, and in determining questions concerning them the breadth of the signification of the term is proportioned in each case to the character of the advance or invention, evidenced by the patent under consideration, an'd is so interpreted by the courts as to protect the inventor against piracy and the public against unauthorized monopoly.” While plaintiff’s patent is for an improvement and is not a pioneer patent, it is primary in the sense that Fardon invented the first device to seal oil storage tanks in order to prevent loss of volatiles through-evaporation. It was a marked improvement. in the art and is entitled to a substantial range of equivalents. There are two well recognized tests of equivalency: (1) “Identity of function”; and (2) “substantial identity of way of performing that function.” Walker on Patents (6th Ed.) § 417; Hyman v. F. W. Woolworth Co. (C. C. A. 8) 28 F.(2d) 833; Allen v. Wingerter (C. C. A. 3) 17 F.(2d) 745, 746;" }, { "docid": "11096379", "title": "", "text": "L. Ed. 1055; Denver v. New York Trust Co., 229 U. S. 123, 136, 33 S. Ct. 657, 57 L. Ed. 1101. To enjoin the breach of a contract is, in effect, to decree its specific performance, and the principles applicable to the two remedies are the same. 2 Pom. Equity Jur. (3d Ed.) § 1341; Hutchinson Gas & Fuel Co. v. Wichita Natural Gas Co. (C. C. A.) 267 F. 35. In Hennessy v. Woolworth, 128 U. S. 438, 442, 9 S. Ct. 109, 111 (32 L. Ed. 500) Mr. Justice Harlan said: “Specific performance is not of absolute right. It rests entirely in judicial discretion, exercised, it is trae, according to the settled principles of equity, and not arbitrarily or capriciously, yet always with reference to the facts of the particular case.” It is a settled principle that a court of equity will ordinarily decree specific performance only when it can dispose of the matter in controversy by a decree capable of present performance. It will not decree a party to perform a continuous duty extending over a series of years, but will leave the aggrieved party to his remedies at law. Marble Co. v. Ripley, 10 Wall. 339, 359, 19 L. Ed. 955; Javierre v. Central Altagracia, 217 U. S. 502, 30 S. Ct. 598, 54 L. Ed. 859; Texas & P. R. R. Co. v. City of Marshall, 136 U. S. 405, 10 S. Ct. 846, 34 L. Ed. 385; Berliner Gramophone Co. v. Seaman (C. C. A.) 110 F. 30; Electric Lighting Co. of Mobile v. Mobile & S. H. Ry. Co., 109 Ala. 190, 19 So. 721, 55 Am. St. Rep. 927; United Cigarette Mach. Co. v. Winston C. Mach. Co. (C. C. A.) 194 F. 947, 958; York Haven Water & Power Co. v. York Haven P. Co. (C. C. A.) 201 F. 270, 277; Poultry Producers of Southern Cal. v. Barlow, 189 Cal. 278, 208 P. 93; City of Newport v. Newport Light Co. (Ky.) 21 S. W. 645. If in the instant case the trial court by final decree should enjoin" }, { "docid": "10373705", "title": "", "text": "PHILLIPS, Circuit Judge. This is an action to recover on a policy of war risk insurance. Upon the trial there was a verdict for plaintiff. Whereupon defendant filed a motion for a new trial. The eourt sustained such motion, and entered an order setting aside the verdict and granting defendant a new trial. Plaintiff has undertaken to appeal from such order. The cause now stands in the District Court with the issues undisposed of, as if it had never been tried. Except in patent suits and proceedings for injunctions and the appointment of receivers, where it has jurisdiction to review certain interlocutory orders or decrees, the jurisdiction of the Circuit Court of Appeals upon appeal is limited to the review of final decisions of District Courts. Sections 225, 227 and 227a, Title 28 USCA. A final decision is one that disposes of the entire controversy between the parties. Wright v. Taft-Peirce Mfg. Co. (C. C. A. 1) 287 F. 131; Todd Engineering, D. D. & R. Co. v. United States (C. C. A. 5) 32 F.(2d) 734, 735; La Bourgogne, 210 U. S. 95, 112, 28 S. Ct. 664, 52 L. Ed. 973. An order sotting aside a verdict and granting a motion for a new trial is not a final decision, and an appeal does not lie therefrom. Ft. Dodge Portland Cement Corp. v. Monk (C. C. A. 8) 276 F. 113; Clement v. Wilson (C. C. A. 2) 135 F. 749; Wright v. TaftPeirce Mfg. Co., supra; Dry Dock, E. B. & B. R. Co. v. Petkunas (C. C. A. 2) 261 F. 988; Sentinel Co. v. Dinwiddie (C. C. A. 7) 41 F. (2d) 57; Hume v. Bowie, 148 U. S. 245, 13 S. Ct. 582, 37 L. Ed. 438. . The appeal is therefore dismissed." }, { "docid": "16181457", "title": "", "text": "as we all agree, no decree such as you suggest could be entered here.” This statement of Wilt-see’s counsel was never withdrawn and fairly represents the situation down to the time when the petition of July 31, 1925, was presented and the action of the court was had allowing it nunc pro tune. We think the allowance of the petition of July 31, 1925, nunc pro tune, as of May 8, 1924, with all the attendant consequences that the order implied, and to which effect was given, was not only highly prejudicial to the rights of the committee, but deprived them of that due 'process of law to which they were entitled and was error. Reynolds v. Stockton, 140 U. S. 254, 268, 270, 11 S. Ct. 773, 35 L. Ed. 464; Hovey v. Elliott, 167 U. S. 409, 17 S. Ct. 841, 42 L. Ed. 215; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Gentry v. United States (C. C. A.) 101 F. 51; Matter of Sleeper, 251 Mass. 6, 146 N. E. 269; In re Rosser (C. C. A.) 101 F. 562; American Mills Co. v. Hoffman (C. C. A.) 275 F. 285; Standard Oil Co. v. Missouri, 224 U. S. 270, 281, 32 S. Ct. 406, 56 L. Ed. 760, Ann. Cas. 1913D, 936. Furthermore, we are of-the opinion that the proceeding to recover damages occasioned the receivership estate through the alleged fraud of the committee should have been brought by the receiver, in whom the right existed, and not by a creditor of the Oil Corporation, to whom the right did not belong and to whom it has never been assigned (Rochester Tumbler Works v. Mitchell Woodbury Co., 215 Mass. 194, 198, 102 N. E. 438; Wilson v. Welch, 157 Mass. 77, 80, 31 N. E. 712; Hayward v. Leeson, 176 Mass. 310, 325, 57 N. E. 656, 49 L. R. A. 725; Kelly v. Dolan [C. C. A.] 233 F. 635; Minchin v. Bank, 36 N. J. Eq. 486, 440; Klein v. Peter [C. C. A.] 284 F. 797, 799, 29 A." }, { "docid": "16186730", "title": "", "text": "and not subject to further control by the trial court. “Defendant claims that throughout the term at which the judgment was entered and throughout any valid extension of that term, it was entitled to make a motion for a new trial; that such motion if made within the term mentioned was in time, that it tolled the judgment, and that the time within which to sue out a writ of error would not begin to run until decision on the motion for a new trial. “It may be that neither of these views is strictly accurate. “There are two rules relating to practice equally well settled which must be considered: “(1) That the time limited by statute within which to sue out a writ of error is fixed and unchangeable and is not subject to control by the court or by consent of parties. Veritas Oil Corporation v. McLain, et al. (C. C. A.) 4 F.(2d) 389; Camden Iron Works Co. v. City of Cincinnati (C. C. A.) 241 F. 846; Elliott Machine Corporation v. Vogt Bros. Mfg. Co. (D. C.) 267 F. 934; Old Nick Williams Co. v. United States (C. C. A.) 152 F. 925, 928; Old Nick Williams Co. v. United States, 215 U. S. 541, 544, 545, 30 S. Ct. 221, 54 L. Ed. 318; Brooks v. Norris, 11 How. 204, 207, 208, 13 L. Ed. 665. “There is one exception to this rule — that where a motion for a new trial is seasonably made, it tolls the statute, and for the purpose of appeal, the judgment does not become final until decision of the motion. Kingman v. Western Mfg. Co., 170 U. S. 675, 678, 18 S. Ct. 786, 42 L. Ed. 1192; Payne v. Garth (C. C. A.) 285 F. 301, 308. “(2) That courts of the United States retain control over their judgments throughout the term at which they are entered. Bronson v. Sehulten, 104 U. S. 410, 415, 26 L. Ed. 797; U. S. v. Mayer, 235 U. S. 55, 67, 35 S. Ct. 16, 59 L. Ed. 129; Walker v." }, { "docid": "17604514", "title": "", "text": "reasonably have reached different conclusions, then a verdict should not have been directed. Farmers’ Nat. Bank v. Missouri Livestock Commission Co. (C. C. A. 8) 53 F.(2d) 991; Self v. New York Life Ins. Co. (C. C. A. 8) 56 F.(2d) 364; Wharton v. Ætna Life Ins. Co. (C. C. A. 8) 48 F.(2d) 37; Illinois Power & Light Corp. v. Hurley (C. C. A. 8)49 F.(2d) 681; Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720. While it is a general rule that, in considering a motion for a directed verdict, the evidence produced by the party against whom the verdict has been directed should be considered in its most favorable light, yet, after all, there must be substantial evidence in support of an issue in order to entitle a litigant to have that issue submitted to a jury. And, even whex*e the evidence is conflicting, if it is of so conclusive a character that the court, in the exercise of sound judicial discretion,would set aside a verdict in opposition to it, then it is the duty of the court to direct a verdiet. St. Louis-San Francisco R. Co. v. Bachler (C. C. A. 8) 26 F.(2d) 26; Business Men’s Assur. Co. v. Scott (C. C. A. 8) 17 F.(2d) 4; Benash v. Business Men’s Assur. Co. (C. C. A. 8) 25 F.(2d) 423; Andresen v. Kaercher (C. C. A. 8) 38 F.(2d) 462. Where, as in this ease, a party testifies in his own behalf, he is not exxtitled to go to the jury on an issue unless that portion of his own testimony which is least favorable to his contention is of such a character as ■will sustain a verdiet in his favor on that issue. Davis v. F. W. Woolworth Co. (C. C. A. 10) 60 F.(2d) 344; Casey v. Northern Pacific R. Co., 60 Mont. 56, 198 P. 141, 145; Atlanta Railway & Power Co. v. Owens, 119 Ga. 833, 47 S. E. 213; Western & Atlantic R. Co. v. Evans, 96 Ga. 481, 23 S. E. 494; Freyermuth" }, { "docid": "21523446", "title": "", "text": "the decree cannot be disputed in a subsequent suit between such parties or their privies. Southern Pacific R. Co. v. U. S., 168 U. S. 1, 18 S. Ct. 18, 42 L. Ed. 355; Nashville, C. & St. L. R. Co. v. U. S., 113 U. S. 261, 5 S. Ct. 460, 28 L. Ed. 971; Ingraham Co. v. Germanow, 4 F.(2d) 1002 (C. C. A. 2); Vapor Car Heating Co. v. Gold Car Heating & Lighting Co., 7 F.(2d) 284, 287 (C. C. A. 2). Cf. Hart Steel Co. v. Railroad Supply Co., 244 U. S. 294, 37 S. Ct. 506, 61 L. Ed. 1148. It is therefore wholly unnecessary for us to determine the question of the validity of the patent in suit, or whether the process practiced by tho defendant in 1924 should properly have been considered an infringement. Had Gray not assigned the patent to complainant, presumably the present questions would have been raised in contempt proceedings (Leman et al. v. Krentler-Arnold Hinge Last Co., 284 U. S. 448, 52 S. Ct. 238, 76 L. Ed. —), and then the principal question for our determination would have been, as it is now, whether the process practiced at the later date (1929) was essentially and substantially the same as the process adjudicated an infringement in 1924. Roberts Cone Mfg. Co. v. Bruckman, 266 F. 986 (C. C. A. 9). Cf. Buckeye Incubator Co. v. Boling, 46 F.(2d) 965 (C. C. A. 6). It is the contention of the defendant that at the time of the alleged infringement of 1929 he was practicing the two-step process covered by patent No. 1,646,268, granted to him October 18, 1927; that the patent in suit was one in an already crowded art, purporting to be merely an improvement over the process disclosed in the prior patent to Gray, No. 831,427, September 18, 1906; that the claims in suit, although accepted as valid, must therefore he strictly construed as limit, ed to a one-step process made operable only by the use in the burden of the blast furnace of an extra charge" }, { "docid": "12803028", "title": "", "text": "years, that the appellees were carrying on operations nnder their patent, resulting in numerous suits, where the validity of their patent was sustained, and whore they successfully maintained suits against infringers thereof. Union Tool Co. v. Wilson & Willard Mfg. Co. (D. C.) 237 F. 837; Wilson & Willard Mfg. Co. v. Union Tool Co. 249 F. 729, 161 C. C. A. 639; Union Tool Co. v. Wilson & Willard Mfg. Co., 248 U. S. 559, 39 S. Ct. 6, 63 L. Ed. 421; Wilson v. Union Tool Co. (D. C.) 237 F. 847; Union Tool Co. v. Wilson, 249 F. 736, 161 C. C. A. 646; Union Tool Co. v. Elihu C. Wilson, 248 U. S. 559, 39 S. Ct. 6, 63 L. Ed. 421; Union Tool Co. v. United States ( C. C. A.) 262 F. 431; Wilson v. Union Tool Co. (C. C. A.) 265 F. 669; Union Tool Co. v. Elihu C. Wilson, 259 U. S. 107, 42 S. Ct. 427, 66 L. Ed. 848. In the present ease, although the appellant’s patent was issued May 1, 1906, he did not commence this suit until August 21, ■ 1922, more than 16 years thereafter. Apart from the rule of law relied upon by him, next to be mentioned, the sole excuse now made in his behalf is that he was financially unable to sue sooner. The rule of law so relied upon is thus .•stated in 21 C. J. 216: “Where both parties were equally at fault, neither can assert laches as against the other; and where each of the parties seeks affirmative relief against the other in reference to the same transaction, neither may assert that the other was guilty of laches.” Respecting that point we think it sufficient to Say that the dispute between the parties to the present suit did not in any wisq involve the same transaction. “'[2] The appellant, in support of his contention that the court below erred in sustaining the plea of laches, relies in part upon the decisions of this court in the eases of Los Alamitos Sugar" }, { "docid": "6511531", "title": "", "text": "infringement. The defendants contend that the effect of these provisions is to subject them to a penalty, and they invoke the ancient rule that equity will not assist in a discovery, if it will tend to expose the party inquired of to a penalty. Story’s Equity Pleadings (7th Ed.) § 575; Daniell, Pl. & Practice in Chancery (5th Am. Ed.) p. 387; Boyd v. U. S., 116 U. S. 616, at page 631, 6 S. Ct. 524, 29 L. Ed. 746. It may also be conceded that equity rule 58 does not operate to enlarge the plaintiff’s rights to discovery, or to change the substantive rules in equity. Wolcott v. National Electric Signaling Co., 235 F. 224 (D. C.); Marquette Mfg. Co. v. Oglesby Coal Co., 247 F. 351 (D. C.). But when we came to consider the application of the rule forbidding discovery in cases of penalties to a suit brought under R. S. § 4921, we enter upon debatable ground. The courts in other jurisdictions are by no means in accord. Discovery has been denied to plaintiffs seeking additional damages under the statute in Speidel v. Barstow, 232 F. 617 (D. C. R. I.); Wilson v. Union Tool Co., 275 F. 624 (D. C. S. D. Cal. 1921); Blackmore v. Collins, 286 F. 629 (D. C. E. D. Mich. 1923); Healthometer Co. v. Jacobs Bros. Co., Inc., 12 F.(2d) 96 (D. C. E. D. N. Y. 1926). Opposed to these eases are several in which the courts have permitted the plaintiff to interrogate the adverse party under rule 58, notwithstanding a claim for increased damages. Masseth v. Johnston, 59 F. 613 (D. C. W. D. Penn. 1894); Grasselli v. National Aniline & Chemical Co., Inc., 282 F. 379 (D. C. S. D. N. Y. 1920); Perkins Oil well Cementing Co. v. Owen, 293 F. 759 (D. C. S. D. Cal. 1923); Taylor v. Ford Motor Co., 2 F. (2d) 473, (D. C. N. D. Ill. 1924); Standard Oil Co. v. Roxana Petroleum Corp., 9 F.(2d) 453 (D. C. S. D. Ill. 1925). In Grasselli Chemical Co. v. National" }, { "docid": "11955965", "title": "", "text": "in one proceeding in equity quickly to settle all equitable issues capable of trial between them in such a proceeding, even though they are not related.” The subject-matter of the suit of the trustee was the ownership of the deposit. The claim which the bank now seeks to offset is upon the note of the bankrupt. This note did not arise out of the same transaction as the deposit. The bank elected not to assert its right of set-off against the trustee in the original suit. It permitted that suit to be finally determined. A decree is final when it terminates the litigation on the merits of the cáse and leaves nothing to be done but to enforce, by execution, what has been determined. St. Louis, I. M. & S. R. R. Co. v. Southern Express Co., 108 U. S. 24, 28, 2 S. Ct. 6, 27 L. Ed. 638; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 S. Ct. 15, 27 L. Ed. 73; Grant v. Phœnix Mut. Life Insurance Co., 106 U. S. 429, 1 S. Ct. 414, 27 L. Ed. 237. The decree here was an adjudication that the deposit belonged to the trustee and that it was an asset of the estate in bankruptcy. Its effect was to transfer title to the trustee. A court of equity has inherent power to prevent its own process from working injustice to any one, and this power may be in voked in a proper ease by an ancillary or dependent bill. Compton v. Jesup (C. C. A. 6) 68 F. 263, 279; Campbell v. Golden Cycle Mining Co. (C. C. A. 8) 141 F. 616, 612; Loy v. Alston (C. C. A. 8) 172 F. 90, 94; Dickey v. Turner (C. C. A. 6) 49 F.(2d) 998, 1000. Assuming that tbe bank now has a right of offset as against the trustee, there appears to be no injustice in requiring that the bank resort to the court of bankruptcy to enforce that right. Had the deposit been voluntarily surrendered to the trustee, it is clear that any controversies with" }, { "docid": "11096378", "title": "", "text": "GILBERT, Circuit Judge (after stating the facts as above). The scope of the inquiry on the appeal is not confined to the question of the exercise of the trial court’s discretion, which is usually decisive on appeals from orders granting or refusing to dissolve interlocutory injunctions. In a ease such as we find this to be, an appellate court may properly go farther and consider whether or not the case made by the bill of complaint is of the class of cases in which injunctive relief may be granted; 'for it is well-settled that, where there is an insuperable objection to the bill, either as to jurisdiction or merits, an appellate court may enter a final decree directing its dismissal. Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 495, 20 S. Ct. 708, 44 L. Ed. 856; Harriman v. Northern Securities Co., 197 U. S. 244, 287, 25 S. Ct. 493, 49 L. Ed. 739; U. S. Fidelity Co. v. Bray, 225 U. S. 205, 214, 32 S. Ct. 620, 56 L. Ed. 1055; Denver v. New York Trust Co., 229 U. S. 123, 136, 33 S. Ct. 657, 57 L. Ed. 1101. To enjoin the breach of a contract is, in effect, to decree its specific performance, and the principles applicable to the two remedies are the same. 2 Pom. Equity Jur. (3d Ed.) § 1341; Hutchinson Gas & Fuel Co. v. Wichita Natural Gas Co. (C. C. A.) 267 F. 35. In Hennessy v. Woolworth, 128 U. S. 438, 442, 9 S. Ct. 109, 111 (32 L. Ed. 500) Mr. Justice Harlan said: “Specific performance is not of absolute right. It rests entirely in judicial discretion, exercised, it is trae, according to the settled principles of equity, and not arbitrarily or capriciously, yet always with reference to the facts of the particular case.” It is a settled principle that a court of equity will ordinarily decree specific performance only when it can dispose of the matter in controversy by a decree capable of present performance. It will not decree a party to perform a" }, { "docid": "13515322", "title": "", "text": "v. Woolworth, 150 U. S. 401-411, 14 S. Ct. 136, 139 (37 L. Ed. 1123), it is said: “The jurisdiction of courts of equity to interfere and effectuate their own decrees by injunctions or writs of assistance in order to avoid the relitigation of questions once settled between the same parlies, is well settled.” And further, as applied to the facts in that case: “Under this principle Morton could undoubtedly have brought the bill to carry into effect the decree rendered in his favor against Root, and it is equally clear that his assignee, or privy in estate, has a right to the same relief that Morton could have asserted.” And this court, in Swift v. Black Panther Oil & Gas Co., 244 F. 20-22, 156 C. C. A. 448, 450, has declared that: “In a case in whieh a federal court first obtains jurisdiction of the subject-matter in controversy, and where it acts in aid of its own jurisdiction to render its orders or decrees, or the title or disposition under them of the property within that jurisdiction, effectual, it may, notwithstanding section 720, Revised Statutes, now section 265 of the Judicial Code [Comp. St. § 1242], enjoin or restrain all proceedings in the state court which would have the effect of defeating or impairing its jurisdiction, or the orders, decrees, or titles it has made or is making in the exercise thereof.” See, also, Wehrman v. Conklin, 155 U. S. 314-329, 15 S. Ct. 129, 39 L. Ed. 367; Wabash R. R. Co. v. Adelbert College of the Western Reserve University, 208 U. S. 38, 28 S. Ct. 182, 52 L. Ed. 379; Julian v. Central Trust Co., 193 U. S. 93, 24 S. Ct. 399, 48 L. Ed. 629; Gunter v. Atlantic Coast Line R. R. Co., 200 U. S. 273, 26 S. Ct. 252, 50 L. Ed. 477. It results from the conclusions herein reached that the order of the trial court must be reversed and the ease remanded for further proceedings in accordance with the views herein expressed." } ]

[ { "docid": "22542457", "title": "", "text": "Murphy, 97 U. S., at 125 (“[I]n determining the question of infringement, the court or jury, as the case may be, . . . are to look at the machines or their several devices or elements in the light of what they do, or what office or function they perform, and how they perform it, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way to obtain the same result”); Winans v. Denmead, 15 How., at 344 (“[It] is a question for the jury” whether the accused device was “the same in kind, and effected by the employment of [the patent-ee’s] mode of operation in substance”). Nothing in our recent decision in Markman v. Westview Instruments, Inc., 517 U. S. 370 (1996), necessitates a different result than that reached by the Federal Circuit. Indeed, Markman cites with considerable favor, when discussing the role of judge and jury, the seminal Winans decision. 517 U. S., at 384-385. Whether, if the issue were squarely presented to us, we would reach a different conclusion than did the Federal Circuit is not a question we need decide today. V All that remains is to address the debate regarding the linguistic framework under which “equivalence” is determined. Both the parties and the Federal Circuit spend considerable time arguing whether the so-called “triple identity” test — focusing on the function served by a particular claim element, the way that element serves that function, and the result thus obtained by that element — is a suitable method for determining equivalence, or whether an “insubstantial differences” approach is better. There seems to be substantial agreement that, while the triple identity test may be suitable for analyzing mechanical devices, it often provides a poor framework for analyzing other products or processes. On the other hand, the insubstantial differences test offers little additional guidance as to what might render any given difference “insubstantial.” In our view, the particular linguistic framework used is less important than whether the test is probative of the essential inquiry: Does the" } ]

[ { "docid": "22975640", "title": "", "text": "the doctrine of equivalents, that the accused product or process incorporate each limitation of the claimed invention. See Warner-Jenkinson, 117 S.Ct. at 1049; Pennwalt, 833 F.2d at 935. Therefore, if an accused product or process performs the identical function and yet avoids literal infringement for lack of a § 112, ¶ 6 structural equivalent, it may well fail to infringe the same functional element under the doctrine of equivalents. See Chiuminatta, 145 F.3d at 1311. This same reasoning may be applied in reverse in certain circumstances. Where, as here, there is identity of function and no after-arising technology, a meansrplus-function claim element that is found to be infringed only under the doctrine of equivalents due to a jury instruction failing to instruct on § 112, ¶ 6 structural equivalents is also literally present in the accused device. VSI’s Version 2 hanger tag has a central body and two arms, with one arm extending from each side of the body. Each arm has a hole near the end for receipt of an eyeglasses temple. The body also has an aperture through which a cantilever rod can be placed so the hanger tag can be hung from a display rack. VSI’s Version 2 hanger tag is the subject of U.S. Patent No. 5,141,104 (the ’104 patent). Figure 4 of the ’104 patent illustrates these features. As noted above, the doctrine of equivalents and structural equivalents under § 112, ¶ 6, though different in purpose and administration, can at times render the same result. In this ease, the jury found infringement under the doctrine of equivalents. This finding presupposes that the jury found an equivalent for each element of the claimed invention, including the “means for securing .” The holes in the arms of VSI’s Version 2 hanger tag secure a portion of the eyeglasses frame (the temples) to the hanger member and therefore perform the identical function of the claim element in question. The jury was instructed that the “means for securing” disclosed in the ’345 patent “is a mechanically fastened loop that ... can be formed from a separate extension or" }, { "docid": "23153645", "title": "", "text": "notions of equivalents? To date, the descriptions offered of the differences between equivalents under the statute and under the doctrine, though they may accurately capture the two ways in which the notion of equivalents has developed and is thought to function, provide little of real guidance to a trier of fact called upon to distinguish the scope of one kind of equivalent from the other. More to the point, the existence of two “different” notions of equivalents cannot help but add a further source of confusion, especially when submitted to a jury for decision based on the kinds of explanatory material available in the cases. In the case before us, the jury was charged to answer whether the claim at issue was literally infringed. The jury’s response was “No.” Because the claim consisted solely of means-plus-function limitations, literal infringement required a finding that the accused device performed the specified functions recited in the means-plus-function limitations with structure the same as or equivalent to the corresponding structure described in the specification. See, e.g., Valmont, 983 F.2d at 1042, 25 USPQ2d at 1454 (setting forth the test for literal satisfaction of a means-plus-function limitation). There appears to be no genuine issue with regard to the specified functions; the accused device appears to perform the functions recited in the means-plus-function claim limitations (and I assume such to be the case). Thus, as a matter of statutory construction and controlling precedent, the jury verdict on literal infringement means that, in the jury’s view, the accused device had neither the corresponding structure described in the specification nor equivalents thereof. But the jury was further charged to answer whether the claim at issue was infringed under the doctrine of equivalents. To this question the jury answered “Yes.” What could that mean? The jury, by its vote on literal infringement, had already ruled out infringement based on the corresponding structure, and, as a matter of established law, it had also ruled out infringement based on equivalent structure, because that also would have been properly classified as “literal” infringement. Given that, a finding of infringement under the doctrine" }, { "docid": "8263855", "title": "", "text": "infringement of a means-plus-function claim “requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification.” Odetics, Inc., 185 F.3d 1259, 1267 (Fed.Cir.1999). “[T]he claim limitation is the overall structure corresponding to the claimed function.” Id. at 1268. An accused structure is equivalent if it “performs the claimed function in substantially the same way to achieve substantially the same result.” Id. at 1267. “The proper test is whether the differences between the structure in the accused device and any disclosed in the specification are insubstantial.” Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1309 (Fed.Cir.1998). To literally infringe a means-plus-function claim, a structural equivalent must have been available at the time the claim issued. Al-Site Corp. v. VSI Int’l, Inc., 174 F.3d 1308, 1320 (Fed.Cir.1999). After-arising technology may only infringe a means-plus-function claim under the doctrine of equivalents. Id. at 1320-21 & n. 2. 1. MPEG-1 and MPEG-2 Products There is substantial evidence to support the jury’s verdict under Microsoft’s theory that there is no infringement because its accused MPEG-1 and MPEG-2 decoders use a “measured motion” rather than a “guessed motion” technique. Microsoft contends that, as a result, the MPEG-1 and MPEG-2 decoders do not contain structure equivalent to the structure of the second means-plus-function element of claim 12, which states: means responsive to said block approximations and to said codes that describe deviations from interpolated blocks to develop said interpolated blocks. The Court identified the corresponding structure as: Decoder 25, DOT- 1 34, Adder 35 and Shift Circuits 31 and 39, including all inputs and outputs of these elements related to the claimed function {See Fig. 2; Col. 4, lines 63-65; Col. 5 lines 7-23 [description of the structure and inputs that correspond to these elements is at Col. 4, lines 38, 50] ). The adder and shift circuits produce an interpolated estimate of a video frame using motion vectors representing motion between the frames preceding and succeeding the interpolated frame. (See '226 4:38-50, 5:7-10.) As described" }, { "docid": "16251182", "title": "", "text": "(Fed.Cir.2000) ]. ACTV, 346 F.3d at 1094. The differences between “equivalents” for purposes of literal infringement and for purposes of infringement under the doctrine of equivalents, when a means-plus-function claim is at issue, thus require some further exploration. In Kemco Sales, Inc. v. Control Papers Co., Inc., 208 F.3d 1352 (Fed.Cir.2000), the Federal Circuit Court of Appeals explained that literal infringement of a means-plus-function claim requires proof that the two structures are “equivalent,” that is, that “they perform the identical function, in substantially the same way, with substantially the same result.” Kemco Sales, Inc., 208 F.3d at 1364 (describing this test as the “functions-way-result methodology”) (emphasis added). On the other hand, [i]f an accused structure is not a section 112, paragraph 6 equivalent of the disclosed structure because it does not perform the identical function of that disclosed structure and hence does not literally infringe, it may nevertheless still be an “equivalent” under the doctrine of equivalents. Thus, if one applies the traditional function-way-result test, the accused structure must perform substantially the same function, in substantially the same way, to achieve substantially the same result, as the disclosed structure. See Dawn Equipment Co. v. Kentucky Farms Inc., 140 F.3d 1009, 1016, 46 USPQ2d 1109, 1113 (Fed.Cir.1998). A key feature that distinguishes “equivalents” under section 112, paragraph 6 and “equivalents” under the doctrine of equivalents is that section 112, paragraph 6 equivalents must perform the identical function of the disclosed structure, see Odetics, 185 F.3d at 1267, 51 USPQ2d at 1229; Pennwalt, 833 F.2d at 934, 4 USPQ2d at 1739, ivhile equivalents under the doctrine of equivalents need only per form a substantially similar function, see Al-Site Corp. v. VSI Int’l, Inc., 174 F.3d 1308, 1320-21, 50 USPQ2d 1161, 1168 (Fed.Cir.1999). Because the “way” and “result” prongs are the same under both the section 112, paragraph 6 and doctrine of equivalents tests, a structure failing the section 112, paragraph 6 test under either or both prongs must fail the doctrine of equivalents test for the same reason(s). Kemco Sales, Inc., 208 F.3d at 1364 (emphasis added). From this review of the" }, { "docid": "16251186", "title": "", "text": "limitations. Rather, the claim limitation is the overall structure corresponding to the claimed function. This is why structures with different numbers of parts may still be equivalent under § 112, ¶ 6, thereby meeting the claim limitation. The appropriate degree of specificity is provided by the statute itself; the relevant structure is that which “corresponds” to the claimed function. See Odetics, Inc., 185 F.3d at 1268 (citations omitted). Donaldson’s argument, on the other hand, would turn the specification of a means-plus-function claim into the claim, by limiting any means-plus-function claim to only the structure disclosed in the specification, if the specification was narrowed in the course of prosecution, instead of recognizing that what is claimed is the means-plus-function, i.e., “the overall structure corresponding to the claimed function.” Id. Turning to infringement of a means-plus-function claim or limitation, the authorities above demonstrate that the full Festo analysis is not relevant to literal infringement, once the means-plus-function claim has been properly construed. This is true, even though literal infringement of a means-plus-function claim requires consideration of whether the accused device performs “the identical function recited in the claim and [is] identical or equivalent to the corresponding structure in the specification.” See Lockheed Martin Corp., 324 F.3d at 1320 (emphasis added). The question of “equivalence” here applies only to whether there are “insubstantial differences” in the structure of the accused device, see Odetics, Inc., 185 F.3d at 1267; the accused device must perform the identical function. Kemco Sales, Inc., 208 F.3d at 1364 (“A key feature that distinguishes ‘equivalents’ under the doctrine of equivalents is that section 112, paragraph 6 equivalents must perform the identical function of the disclosed structure, while equivalents under the doctrine of equivalents need only perform a substantially similar function.”) (citations omitted). “Structural equivalence under § 112, ¶ 6 is, as noted by the Supreme Court, ‘an application of the doctrine of equivalents ... in a restrictive role.’ ” Odetics, Inc., 185 F.3d at 1267 (quoting Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 28, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997)). The “insubstantial differences” test" }, { "docid": "21075282", "title": "", "text": "of the ’378 patent to require a means for “making the belt taut around the wheels” and a means for “longitudinally separating the front and rear wheels.” Caterpillar, slip op. at 4. The district court concluded that “[a]s illustrated in Fig. 10 of the ’378 patent, the corresponding structure that performs [the tensioning functions] in the ’378 patent is a pair of hydraulic cylinders connected to the frame and angled struts linking the pistons in those cylinders to a front axle extending between the idler wheels. The front axle is mounted on a spherical bearing slidably mounted on a fore and aft pivot pin connected to the frame. The claims cover that structure and its equivalents.” Id. at 4-5. Caterpillar and Deere do not dispute this claim construction. . In light of the undisputed claim construction, the key infringement issue before us is whether the accused devices contain the tensioning means of the disputed claims. Whether an accused device or method infringes a claim either literally or under the doctrine of equivalents is a question of fact. See Insituform Techs., Inc. v. Cat Contracting, Inc., 161 F.3d 688, 692, 48 U.S.P.Q.2d 1610, 1614 (Fed.Cir.1998). “Literal infringement of a § 112, ¶ 6 limitation requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification.” Odetics, 185 F.3d at 1267, 51 U.S.P.Q.2d at 1229 (citations omitted). “Functional identity and either structural identity or equivalence are both necessary.” Id. The tests for equivalence under § 112, ¶ 6 and the doctrine of equivalents are closely related, and involve “similar analyses of insubstantiality of differences.” Id. A reduced version of the well-known tripartite test for the doctrine of equivalents has been applied in the § 112, ¶ 6 context to determine if the differences are insubstantial; an accused device is equivalent when it performs the identical function in substantially the same way to achieve substantially the same result. See IMS Tech., 206 F.3d at 1435, 54 U.S.P.Q.2d at 1138 (citing Odetics, 185 F.3d at 1267," }, { "docid": "22409729", "title": "", "text": "adjustments and pivot point produces the desired effect in the embodiment shown in figures 11 and 12, id, col. 7, 1. 50—col. 8, 1. 15 and col. 8, 11. 26-36. Finally, the text discussing figure 13 describes a combination of motor, slider, swivel ball and swivel seat as the corresponding structures. Id, col. 8, 11. 52-62. D Having construed the disputed claims, we must now ascertain whether the district court properly granted summary judgment of noninfringement of claims 1 and 3 of the '880 patent. On that point, we must answer in the negative. Indeed, triable issues of fact, not amenable to appellate determination on first instance, remain in this case. As a question of fact, literal infringement of a § 112, ¶ 6 limitation requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification. Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1268-69, 51 USPQ2d 1225, 1229-31 (Fed.Cir.1999). Functional identity and either structural identity or equivalence are both necessary. Id., 185 F.3d 1259, 51 USPQ2d at 1229-30. Because we have rectified the district court’s construction of the claimed function and clarified the corresponding structures, the summary judgment of noninfringement cannot stand since the conclusion regarding the lack of functional identity is no longer necessarily true. Under the correct construction of its function, the “means for causing” is no longer prohibited from projecting its laser beams into the interior of the energy zone; it must only avoid adding appreciable heat to the energy zone as to affect the accuracy of the temperature measurement. In this case, the parties agree that the accused devices project a single laser beam into the center of the energy zone, but dispute whether that laser beam adds any appreciable heat to the zone. In fact, in response to Raytek’s motion for summary judgment, Omega proffered two expert declarations, both asserting that any heat added by a central laser was inconsequential and did not affect -the temperature reading. Because a reasonable jury might reach different conclusions" }, { "docid": "21075283", "title": "", "text": "of fact. See Insituform Techs., Inc. v. Cat Contracting, Inc., 161 F.3d 688, 692, 48 U.S.P.Q.2d 1610, 1614 (Fed.Cir.1998). “Literal infringement of a § 112, ¶ 6 limitation requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification.” Odetics, 185 F.3d at 1267, 51 U.S.P.Q.2d at 1229 (citations omitted). “Functional identity and either structural identity or equivalence are both necessary.” Id. The tests for equivalence under § 112, ¶ 6 and the doctrine of equivalents are closely related, and involve “similar analyses of insubstantiality of differences.” Id. A reduced version of the well-known tripartite test for the doctrine of equivalents has been applied in the § 112, ¶ 6 context to determine if the differences are insubstantial; an accused device is equivalent when it performs the identical function in substantially the same way to achieve substantially the same result. See IMS Tech., 206 F.3d at 1435, 54 U.S.P.Q.2d at 1138 (citing Odetics, 185 F.3d at 1267, 51 U.S.P.Q.2d at 1229-30). The first question is whether the accused devices perform the identical functions recited in the claims — “making the belt taut around the wheels” and “longitudinally separating the front and rear wheels.” Deere conceded that the accused devices perform the broad function recited in the tensioning means limitation. Because the accused devices do not contain the same structure, as disclosed in the ’378 patent, the only question is whether the Deere tractors contain a structure that is an equivalent of the disclosed structure. Deere argued that its swing liqk tensioning mechanism was not structurally equivalent to the tensioning means disclosed in the ’378 patent. Caterpillar presented considerable evidence, including affidavits and depositions of experts and numerous exhibits, that although structurally different, the accused swing link tensioning system performed the same function in substantially the same way to achieve substantially the same result as the corresponding structure in the claims of the ’378 patent. The district court held that no reasonable jury could find the accused and claimed structures to be insubstantially" }, { "docid": "8420853", "title": "", "text": "case because they perform the identical function but in a fundamentally different way. That, however, is a question of equivalence. It is not before this Court today. Moreover, IBM’s insistence that such details as Hamming code and Texas Instrument chips are literally part of what the inventor under the ’342 patent is claiming, while understandable, is unwarranted. Here, the recent Odetics case is instructive. In that case, the district court ruled that the individual components of an overall structure that corresponded to a claimed function — in that case, a “rotary means” for accessing stored videocassettes — were part of the claim limitation. Although, as IBM notes, the issue of claim construction was not directly before the court, the Federal Circuit reversed, stating: The claim limitation is the overall structure corresponding to the claimed function. That is why structures with different numbers of parts may still be equivalent under Section 112, para. 6, thereby meeting the claim limitation. The appropriate degree of specificity is provided by the statute itself; the relevant structure is that which “corresponds” to the claimed function. Further deconstruction or parsing is incorrect. Odetics, 1999 WL 455530 at *6. Judge Young was quite careful to rule that structural equivalents of the TI semiconductor chip (i.e., single integrated circuits) and structural equivalents of the Hamming code (which he found to be “other codes that perform precisely the same function, which were known at the time of this patent”) fell within the scope of the claimed invention. Try as it might, IBM cannot convince me to read the word “equivalents” out of the claim construction. I adopt Judge Young’s construction of limitation (vii). The only disputed portion of limitation (viii), the “means for accessing” claim, is Judge Young’s description of the disclosed structure. Otherwise, both parties are agreed that this limitation requires the ability to access the “spare” memory/memories for the purpose of storing a “back-up” set of corrected digits at the same time that the corrections are being sent to the main memory/memories. I can see no reason for adding IBM’s proposed language to Judge Young’s carefully crafted" }, { "docid": "13417041", "title": "", "text": "Star Asia’s TITAN device infringes Claims 26 to 31 of Great Neck’s utility patent. Neither expert, however, applied the correct legal standard. The standards that govern in the means-plus-function context differ from the usual doctrines of patent infringement. To prove literal infringement of a means-plus-function limitation, the patent owner must show: (i) the relevant structure in the accused device performs the identical function recited in the patent claim; and (ii) the relevant structure in the accused device is identical or equivalent to the corresponding structure in the specification. Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999). Although both parties cited Odetics in their briefs, they did not perform an analysis using the standard set forth in that case. Applying the two-part test outlined in Odetics, the Court concludes that the first prong is satisfied because certain structures of the TITAN device perform the two claimed functions at issue, namely removably holding a standard trapezoidal blade and locking the blade in place. With regard to the second element of the Odetics standard, Great Neck has not disputed, and- the Court finds, that the TITAN knife does not have structures identical to those disclosed in the specification of the '022 Patent; the TITAN product has neither a pivoting guard wall nor a pivoting u-shaped clip. Thus, the second part of the Odetics inquiry requires only that the Court evaluate structural equivalence, ie., whether the allegedly equivalent components of the accused TITAN device perform the claimed functions in “substantially the same way” to achieve “substantially the same result” as the corresponding structures described in the specification. Odetics, 185 F.3d at 1267; see id. (“The content of the test for insubstantial differences under § 112, ¶ 6 thus reduces to ‘way’ and ‘result.’ ”). For purposes of this analysis, a structure may consist of multiple components; the relevant structure is the totality of parts corresponding to the claimed function. Id. at 1268. Thus, structures with different numbers of elements may still be equivalent, and the Court must avoid any type of component-by-component comparison. Id.; see also Caterpillar Inc. v. Deere &" }, { "docid": "20031896", "title": "", "text": "automatically avoid infringement, either literally or by equivalency.” National Presto Industries, Inc. v. West Bend Co., supra at 1192. It is, therefore, only a factor to be considered, and is not dispositive of the issue. What is more significant to our infringement analysis is that Claim 13, like the other claims of the Viken Patent, is composed in a “means plus function” format. The Court construes Claim 13, in light of the corresponding structure illustrated in Fig. 3, and the related text in the specification, to claim all of the elements of Claim 1, and to further claim that the “means for equalizing the flow is comprised of means” consisting of a flexible, rubber-like diaphragm, which exhibits “resilient characteristics for exerting a force, related to the pressure existing in the fluid circulation circuit,” upon the automatic transmission fluid in the fluid source. See, Viken Patent, col. 8, 55-61. Where the patent claim that is allegedly being infringed is a “means plus function” claim, governed by Section 112, paragraph 6, the infringement analysis takes on a different hue, as the analytical line between literal infringement and the doctrine of equivalents tends to blur. To find literal infringement of a Section 112, paragraph 6 limitation, the factfinder must first determine that the accused device performs an identical function to the one recited in the means plus function clause. Mas-Hamilton Group v. LaGard, Inc., supra at 1211. If the factfinder concludes that the functions of the two structures are identical, then literal infringement will exist if “the accused device utilizes the same structure or materials as described in the specification, or their equivalents.” Id. at 1212; see also, Al-Site Corp. v. VSI Int’l, Inc., supra at 1320. Thus, “[functional identity and either structural identity or equivalence are both necessary.” Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999), citing Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934 (Fed.Cir.1987) (en banc), cert. denied, 485 U.S. 961, 108 S.Ct. 1226, 99 L.Ed.2d 426 (1988). Where there is functional identity, but not structural identity, between the accused device and the patent claim, the" }, { "docid": "23120794", "title": "", "text": "the infringement section asked the jury: 11. Does claim 9 of the Richardson Patent describe the invention of a rising rate in terms of what the invention will do rather than in terms of physical arrangement? Answer: NO We conclude that the answer “yes, with the rising rate” in verdicts 9(a) and 9(b) is the jury’s response to Suzuki’s argument, rather than as a finding that only the rising rate claim limitation, and no other, is embodied in the Suzuki suspensions. We discern no support in the record for the district court’s conclusion that verdicts 9(a) and 9(b) meant that the rising rate was the only area of infringement. Structure corresponding to every element of every clause of claims 1 and 9 was identified by witnesses as embodied in the accused motorcycles. There was no real dispute that of the nine or eleven elements in these claims (depending on how counted), all but one were literally present. The dispute centered on one element, the attachment of the spring in the claim clause “spring means having a first end pivotally secured to said frame”, since this was the clause affected by the modifications of the Alternate Shock Mount and the criss-cross. In the Alternate Shock Mount, as we have discussed, the spring is pivotally secured to a swing arm that in turn is pivotally secured to the frame, instead of being pivot-ally secured directly to the frame as is shown in the ’332 specification. Richardson argues that the spring can be either directly or indirectly pivotally secured to the frame, without avoiding literal infringement of the claim. Richardson alternatively argues that on a correct definition of the doctrine of equivalents, citing Graver Tank, 339 U.S. at 608, 70 S.Ct. at 856, these securements are equivalent because the structures are substantially the same and perform substantially the same function in the same way. The jury had been given the dictionary definition that “equivalent” means “corresponding or virtually identical, especially in effect or function”. This definition was reinforced by the phrasing of verdicts 9(a)(1) and 9(b)(1), wherein the question itself instructed the jury" }, { "docid": "23153646", "title": "", "text": "at 1042, 25 USPQ2d at 1454 (setting forth the test for literal satisfaction of a means-plus-function limitation). There appears to be no genuine issue with regard to the specified functions; the accused device appears to perform the functions recited in the means-plus-function claim limitations (and I assume such to be the case). Thus, as a matter of statutory construction and controlling precedent, the jury verdict on literal infringement means that, in the jury’s view, the accused device had neither the corresponding structure described in the specification nor equivalents thereof. But the jury was further charged to answer whether the claim at issue was infringed under the doctrine of equivalents. To this question the jury answered “Yes.” What could that mean? The jury, by its vote on literal infringement, had already ruled out infringement based on the corresponding structure, and, as a matter of established law, it had also ruled out infringement based on equivalent structure, because that also would have been properly classified as “literal” infringement. Given that, a finding of infringement under the doctrine of equivalents could only mean that there is something perceivably different between an equivalent under the doctrine and the equivalent, or lack thereof, under the statutory test. What this could possibly be escapes me. Beyond that, is it possible that the jury thought there was something called an equivalent of an equivalent, and that is what the jury found to exist? These are not simply matters of semantics. They go to the very act of deliberative decision making, decision making based on a meaningful rule of law. However many variations there are in the words we use to describe the criteria by which to determine when something in fact is the “equivalent” of something else, see, e.g., Hilton Davis, 62 F.3d at 1517-18, 35 USPQ2d at 1645 (defining equivalence as “insubstantial differences” and mentioning that that test may be satisfied where the function, way and result are substantially the same), the basic notion of equivalence does not vary. An equivalent is something that is “equal in force or amount,” “like in signification or import,” “synonymous,”" }, { "docid": "16076099", "title": "", "text": "gives no reason to read the same limitation differently in claims with or without yawing. Because the ’020 patent neither clearly indicates that the pivoting limitation should have different meanings in claims that do not have a yawing function, nor discloses an alternative embodiment, the trial court correctly read “means for selectively pivoting” to include a lift plate under the boom. To conclude otherwise would render the patent internally inconsistent and the invention inoperable. Because these reasons sufficiently support the district court’s claim construction, this court need not reach the district court’s disclaimer finding. Turning now to the infringement inquiry, literal infringement requires that each and every limitation set forth in a claim appear in an accused product. Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 796 (Fed.Cir.1990). “Literal infringement of a § 112, ¶ 6 limitation requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification.” Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999). Although the issue of whether an accused device includes a structural equivalent under § 112, ¶ 6 claim is a question of fact, id. at 1268, the district court may find the absence of an equivalent where “no reasonable jury could have found that the accused device has an equivalent to the disclosed structure.” Chiuminatta Concrete Concepts Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1309 (Fed.Cir.1998). Because structural equivalents under § 112, ¶ 6 are included within literal infringement of means-plus-function claims, “the court must compare the accused structure with the disclosed structure, and must find equivalent structure as well as identity of claimed function for the structure.” Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934 (Fed.Cir.1987) (emphasis in original). This inquiry for equivalent structure under § 112, ¶ 6 examines whether “the assertedly equivalent structure performs the claimed function in substantially the same way to achieve substantially the same result as the corresponding structure described in the specification.” Odetics, 185 F.3d at 1267. This case satisfies the" }, { "docid": "20031897", "title": "", "text": "different hue, as the analytical line between literal infringement and the doctrine of equivalents tends to blur. To find literal infringement of a Section 112, paragraph 6 limitation, the factfinder must first determine that the accused device performs an identical function to the one recited in the means plus function clause. Mas-Hamilton Group v. LaGard, Inc., supra at 1211. If the factfinder concludes that the functions of the two structures are identical, then literal infringement will exist if “the accused device utilizes the same structure or materials as described in the specification, or their equivalents.” Id. at 1212; see also, Al-Site Corp. v. VSI Int’l, Inc., supra at 1320. Thus, “[functional identity and either structural identity or equivalence are both necessary.” Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999), citing Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934 (Fed.Cir.1987) (en banc), cert. denied, 485 U.S. 961, 108 S.Ct. 1226, 99 L.Ed.2d 426 (1988). Where there is functional identity, but not structural identity, between the accused device and the patent claim, the statutory “means plus function” test measures the possible equivalence between the structures in an analytical framework that is “closely related” to the doctrine of equivalents. See, Chiuminatta Concrete Concepts, Inc. v. Cardinal Industries, Inc., supra at 1310; see also, Warner-Jenkinson Co. v. Hilton Davis Chem Co., supra at 28, 41, 117 S.Ct. 1040 (statutory structural equivalence is “an application of the doctrine of equivalents *** in a restrictive role.”). Like the doctrine of equivalents, the statutory test for structural equivalence compares the “insubstantiality of differences” between structures. See, Al-Site Corp. v. VSI Int’l, Inc., supra at 1321. In content, the equivalence test under Section 112, paragraph 6, reduces the function-way-result test to “way” and “result,” requiring “a determination of whether the Svay’ the assertedly substitute structure performs the claimed function, and the ‘result’ of that performance, is substantially different from the ‘way’ the claimed function is performed by the ‘corresponding structure, acts, or materials described in the specification,’ or its ‘result.’ ” Odetics, Inc. v. Storage Technology Corp., supra at 1267. Put more succinctly, statutory" }, { "docid": "22742143", "title": "", "text": "the structure described in the specification corresponding to the claim’s means. Under the doctrine of equivalents, on the other hand, the question is whether the accused device is only insubstantially different than the claimed device.”) (internal citations omitted). After the judge construes the means-plus-funetion limitations identifying structures, materials, or acts described in the patent’s specification, and their equivalents as determined by the fact finder (step one, described above), the judge gives the construed claims to the fact finder, in this case a jury, for a determination of infringement. See D.M.I., 755 F.2d at 1575, 225 USPQ at 239. For literal infringement, the fact finder must determine whether the accused device performs an identical function to the one recited in the means-plus-function clause. See Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934, 4 USPQ2d 1737, 1739 (Fed.Cir, 1987) (if the identical function is not performed, literal infringement is not possible). If the identical function is performed, the fact finder must then determine whether the accused device utilizes the same structure or materials as described in the specification, or their equivalents. Just as the fact finder’s infringement analysis differs between equivalence under paragraph 112(6) and the doctrine of equivalents, so too differs the analytical effect of statements made during the prosecution of the patent on construction of the claims. Under paragraph 112(6), a statement made during prosecution may confine the range of equivalent structures, materials, or acts that are directly claimed by the patent. However, in the context of a doctrine of equivalents analysis, the patentee seeks protection beyond that claimed by the patent directly. As such, the judge’s construction of the claims — which includes the interpretation- of claim terms— may not be sufficient to remove from the jury’s consideration all subject matter that was disclaimed during prosecution. Prosecution history estoppel addresses this problem by excluding equivalents surrendered during prosecution. Under this doctrine, statements made to overcome rejections based, as here, on prior art estop the patentee from extending its right to exclude others from-making, using, or selling subject matter known to be insubstantially different from, or interchangeable with, claimed" }, { "docid": "16251187", "title": "", "text": "the accused device performs “the identical function recited in the claim and [is] identical or equivalent to the corresponding structure in the specification.” See Lockheed Martin Corp., 324 F.3d at 1320 (emphasis added). The question of “equivalence” here applies only to whether there are “insubstantial differences” in the structure of the accused device, see Odetics, Inc., 185 F.3d at 1267; the accused device must perform the identical function. Kemco Sales, Inc., 208 F.3d at 1364 (“A key feature that distinguishes ‘equivalents’ under the doctrine of equivalents is that section 112, paragraph 6 equivalents must perform the identical function of the disclosed structure, while equivalents under the doctrine of equivalents need only perform a substantially similar function.”) (citations omitted). “Structural equivalence under § 112, ¶ 6 is, as noted by the Supreme Court, ‘an application of the doctrine of equivalents ... in a restrictive role.’ ” Odetics, Inc., 185 F.3d at 1267 (quoting Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 28, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997)). The “insubstantial differences” test for literal infringement of a means-plus-function limitation is thus “narrower” than the doctrine of equivalents, even though “rooted in similar concepts of insubstantial differences.” Id. “The similar analysis of equivalents under § 112, ¶ 6 and the doctrine of equivalents does not, however, lead to the conclusion that [Supreme Court precedents] command a component-by-component analysis of structural equivalence under § 112, ¶ 6.” Id. at 1267-68. Consequently, Festo— which explains how prosecution history es-toppel affects infringement under the doctrine of equivalents — does not, and does not purport to, address either construction or literal infringement of a means-plus-function claim. On the other hand, Festo obviously does apply to infringement of a means-plus-function claim under the doctrine of equivalents, because the Festo analysis will be determinative of the scope of equivalent functions that may be considered. See Kemco Sales, Inc., 208 F.3d at 1364 (for a means-plus-function claim to be infringed under the doctrine of equivalents, “the accused structure must perform substantially the same function, in substantially the same way, to achieve substantially the same result," }, { "docid": "16076100", "title": "", "text": "185 F.3d 1259, 1267 (Fed.Cir.1999). Although the issue of whether an accused device includes a structural equivalent under § 112, ¶ 6 claim is a question of fact, id. at 1268, the district court may find the absence of an equivalent where “no reasonable jury could have found that the accused device has an equivalent to the disclosed structure.” Chiuminatta Concrete Concepts Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1309 (Fed.Cir.1998). Because structural equivalents under § 112, ¶ 6 are included within literal infringement of means-plus-function claims, “the court must compare the accused structure with the disclosed structure, and must find equivalent structure as well as identity of claimed function for the structure.” Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934 (Fed.Cir.1987) (emphasis in original). This inquiry for equivalent structure under § 112, ¶ 6 examines whether “the assertedly equivalent structure performs the claimed function in substantially the same way to achieve substantially the same result as the corresponding structure described in the specification.” Odetics, 185 F.3d at 1267. This case satisfies the requirement of an identity of function between the under-mounted hydraulic cylinder on Weatherford’s device and the hydraulic cylinder attached to the lift plate in the ’020 patent disclosure. Nonetheless, as the district court correctly discerned, no reasonable jury could fail to find a substantial difference between the two raising and lowering mechanisms in the accused device and the ’020 patent. As the trial court observed, the two mechanisms “represent two distinct structural approaches to performing essentially the same function.” Frank’s Casing Crew, No. CIV-01-104-F, slip. op. at 24-25 (W.D.Okla. May 28, 2003). The “indisputable mechanical in compatibility between the two devices” underscores this finding. Id. at 26. Thus, this court agrees with the district court that summary judgment of non-infringement under § 112, ¶ 6 is appropriate. There is also no possible equivalent under the doctrine of equivalents. The primary difference between structural equivalents under § 112, ¶ 6 and the doctrine of equivalents is a question of timing. Al-Site Corp. v. VSI Int’l, Inc., 174 F.3d 1308, 1321 n. 2 (Fed.Cir.1999). As this court" }, { "docid": "22949300", "title": "", "text": "“equivalents” under the doctrine of equivalents is that section 112, paragraph 6 equivalents must perform the identical function of the disclosed structure, see Odetics, 185 F.3d at 1267, 51 USPQ2d at 1229; Pennwalt, 833 F.2d at 934, 4 USPQ2d at 1739, while equivalents under the doctrine of equivalents need only perform a substantially similar function, see Air-Site Corp. v. VSI Int’l, Inc., 174 F.3d 1308, 1320-21, 50 USPQ2d 1161, 1168 (Fed.Cir.1999). \" Because the “way” and “result” prongs are the same under both the section 112, paragraph 6 and doctrine of equivalents tests, a structure failing the section 112, paragraph 6 test under either or both prongs must fail the doctrine of equivalents test for the same reason(s). That was the case in Chiuminatta, in which the “way” was determined to be substantially different under a section 112, paragraph 6 analysis. See Chiuminatta, 145 F.3d at 1309, 46 USPQ2d at 1757. Accordingly, we concluded that the accused structure did not infringe under the doctrine of equivalents for precisely the same reason. Seedd. at 1311, 145 F.3d 1303, 46 USPQ2d at 1758. In the present case, we agree with the district court that no reasonable jury could have found that the TripLok infringes, either literally or under the doctrine of equivalents. Turning first to liter al infringement, it is clear that the fold-over flap structure disclosed in the '197 patent specification is not identical to the dual-lip structure in the accused device, so we must then ask whether the dual-lip structure is an “equivalent” structure under section 112, paragraph 6. In determining this under a modified function-way-result test, we note that both the accused and disclosed structures perform the identical function, which is to close the envelope. However, unlike the disclosed flap, which closes by folding over the envelope, the dual-lip structure closes the accused envelope in a different way by meeting together and binding via the internal adhesive. The accused structure’s different way of closing also yields a substantially different result. The first and second sealing means in the disclosed structure are ultimately attached to the outside of the envelope." }, { "docid": "16251192", "title": "", "text": "165 F.Supp.2d at 879; see also Opinion and Order, June 11, 2001 (docket no. 128), at 4. Nor does the prosecution history limit the “equivalent” structures upon which EPC may rely to prove literal infringement. Again, to prove literal infringement of this means-plus-function limitation, EPC must prove that the accused equivalent “perform[s] the identical function, in substantially the same way, with substantially the same result.” Kemco Sales, Inc., 208 F.3d at 1364 (describing this test as the “functions-way-result methodology”) (emphasis added); accord Lockheed Martin Corp., 324 F.3d at 1320. The “substantially the same way” step in the test is satisfied by structures that are “insubstantially different.” See Odetics, Inc., 185 F.3d at 1267. This does not, however, “command a component-by-component analysis of structural equivalence under § 112, ¶ 6,” even of structures specified by the patentee as performing the required function. Id at 1267-68. Thus, it follows with even more certainty that proof of literal infringement does not require a component-by-component analysis of other members upon which the necessary structure acts to perform the required function. The analysis of the question of whether prosecution history limits the scope of equivalents for infringement un der the doctrine of equivalents is somewhat more complicated. At this point, the full Festo analysis applies. Nevertheless, the court finds no “narrowing” amendment of the structure actually performing the “disengagement” function in the course of prosecution of the ’456 patent. Festo, 344 F.3d at 1366 (“The first question in a prosecution history estoppel inquiry is whether an amendment filed in the Patent and Trademark Office (‘PTO’) has narrowed the literal scope of a claim.”). That structure was, at all times, the “button.” Therefore, that portion of the analysis need proceed no further. Whether or not there was a narrowing amendment to the “function” part of the means-plus-function claim is a closer question. In the original application, the resetting function was stated as “manually resetting the indicator to indicate a higher air pressure in said negative zone when such is again present therein” and “manually disengaging the said latch element and the guide member when desired.” See" } ]

[ { "docid": "19347866", "title": "", "text": "deputy prosecutor in Santa Clara County. This suit followed. I An official is entitled to qualified immunity when the official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Schwartzman v. Valenzuela, 846 F.2d 1209, 1211 (9th Cir.1988). In order for an official to violate clearly established rights, the unlawfulness of the challenged conduct must be apparent in light of preexisting law. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Whether the law was clearly established is a question of law reviewed de novo. Brady v. Gebbie, 859 F.2d 1543, 1556 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989). A Bergna concedes that Finkelstein has a protected property interest in his job under California law. Once a protected interest is found, the inquiry turns to what process is due. Orloff v. Cleland, 708 F.2d 372, 378-79 (9th Cir.1983). Bergna contends that it was not clearly established in 1982 that a temporary suspension, as opposed to a discharge, could implicate the procedural protections of the due process clause. Bergna is incorrect. See, e.g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (suspension of student implicated liberty and property interests requiring procedural due process); Devine v. Cleland, 616 F.2d 1080 (9th Cir.1980) (suspension of VA educational benefits required presuspension process). Bergna next contends that the postdepri-vation process afforded Finkelstein was sufficient to meet the requirements of the due process clause. Bergna is again incorrect. Pursuant to the three-part test announced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), we have consistently held that where predepri-vation process is feasible, it must be afforded before a person may be deprived of a protected interest. Sinaloa Lake Owners Ass’n. v. City of Simi Valley, 864 F.2d 1475, 1481-83 (9th Cir.1989), modified in unrelated part, 882 F.2d 1398 (9th Cir.1989); Merritt v. Mackey, 827 F.2d 1368, 1372 (9th Cir.1987);" } ]

[ { "docid": "19719530", "title": "", "text": "court stated: “[t]he district court could not resolve the disputed facts with respect to the remaining claims against [defendant-appellant] and neither should we.” Id. at 937. In contrast to Pellegrino, the facts alleged in the record before us are not in dispute. Appellees assert that the element of appellants’ deliberate indifference is in dispute and, therefore, a genuine issue of fact exists. However, we confine our inquiry to the objective requirement of the Eighth Amendment and therefore do not address deliberate indifference. Because the issue appealed here concerns not which facts the parties may be able to prove but whether certain given facts show a violation of clearly established law, we conclude that we have jurisdiction. III. This Court reviews a denial of qualified immunity de novo. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). When a public official asserts qualified immunity from liability, the district court must determine whether, in light of clearly established principles governing the conduct in question, the official objectively could have believed that his conduct was lawful. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987); Act Up!/Portland, 988 F.2d at 871. “Defendants are entitled to qualified immunity only ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir.), cert. denied, — U.S. —, 115 S.Ct. 1695, 131 L.Ed.2d 559 (1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). A public official is not entitled to qualified immunity when the contours of the allegedly violated right were “sufficiently clear that a reasonable official would understand that what he [was] doing violatefd] that right.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Absent binding precedent, we look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir.1989), cert." }, { "docid": "7360241", "title": "", "text": "fees. The Minnesota Court of Appeals affirmed the district court’s order, but reversed the award of attorneys’ fees, concluding that the county had presented credible evidence that Kraft and Schleck were not county employees. Schleck v. State, 442 N.W.2d 359, 363 (Minn.Ct.App.1989). Schleck and Kraft then filed the present action, claiming that Ramsey County, Alliegro, Moriarity, and Mahoney had deprived them of property and liberty interests without due process of law, in violation of 42 U.S.C. § 1983 (1988). The District Court granted Moriarity’s and Maho-ney’s motions for summary judgment, and denied Alliegro’s summary judgment motion. Schleck’s and Kraft’s motion for partial summary judgment against Alliegro also was denied. Alliegro appeals, arguing that she is entitled to summary judgment on the basis of qualified immunity. II. “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In order for a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what [s]he is doing violates that right.... [I]n light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The standard for determining whether this qualified immunity is applicable is objective reasonableness. “Whether an official may prevail in [her] qualified immunity defense depends upon the ‘objective reasonableness of [her] conduct as measured by reference to clearly established law.’ ... No other ‘circumstances’ are relevant to the issue of qualified immunity.” Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738 (footnote deleted)). See also Holloway v. Conger, 896 F.2d 1131, 1136-37 (8th Cir.1990). It is well-established that a public employee with a property interest in continued employment is entitled to a pre-termination hearing. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532," }, { "docid": "23440819", "title": "", "text": "2727, 2736, 73 L.Ed.2d 396 (1982)). Contrary to Lanigan’s belief, qualified immunity may be raised in a motion to dismiss, but at that stage, we consider only the facts alleged in the complaint, which we are obligated to accept as true. Kernats, 35 F.3d at 1175-76. Under the doctrine of qualified immunity, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as then-conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (emphasis added). “The contours of a ‘clearly established’ right ‘must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Sivard, 17 F.3d at 189 (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Thus, the determination of whether public officials are entitled to qualified immunity is an objective one. Triad Associates, Inc. v. Robinson, 10 F.3d 492, 496 (7th Cir.1993). This objective standard “protects the public interest in deterrence of and compensation for an official’s unlawful conduct while safeguarding the official’s ability to make difficult decisions “with independence and without fear of consequences.’ ” Kernats, 35 F.3d at 1176 (citing Harlow, 457 U.S. at 819, 102 S.Ct. at 2739). We are concerned with “whether a reasonable police officer could have believed [the conduct was] constitutional, ‘in light of clearly established law and the information [he] possessed’ at the time.” Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir.1996) (citing Anderson, 483 U.S. at 639, 641, 107 S.Ct. at 3038, 3040). “The level of generality at which the relevant legal rule is to be identified may not be so abstract that the rule of qualified immunity is converted into a rule of virtually unqualified liability.” Sivard, 17 F.3d at 189 (citing Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). “The “very action in question’ need not have previously been held unlawful, but, in the light of pre-existing law, the unlawfulness of the action must" }, { "docid": "13035112", "title": "", "text": "immunity on the ground that they had violated no clearly established constitutional right. On October 5, 1987, the district court issued an order granting summary judgment to the defendants on the procedural due process claim but denying the defendants’ motion as to the substantive due process claim and the qualified immunity defense. The district court also denied Lum’s motion for summary judgment, ruling that triable issues of fact existed as to whether the defendants’ termination of Lum had been arbitrary, capricious, and pretextual. On October 28, 1987, the defendants filed a timely appeal from the order denying their motion for summary judgment. They argue that at the time Lum was fired, there was no clearly established substantive due process right to continued public employment that would preclude an arbitrary, capricious, and pretextual termination. They contend that because there was no clearly established right, they were entitled to qualified immunity as a matter of law. DISCUSSION I. Qualified Immunity in General Government officials who perform discretionary functions are protected from liability for civil damages as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). To defeat qualified immunity, Lum must allege violation of more than an abstract right to due process. He must allege violation of a right that has been “ ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The district court’s determination regarding immunity is reviewed de novo. Tribble v. Gardner, 860 F.2d 321, 323 (9th Cir.1988). On an interlocutory appeal, the appellate court “need not consider the correctness of the plaintiff’s version of the facts, nor even determine whether the plaintiff’s allegations actually state a claim.” Mitchell, 472 U.S. at" }, { "docid": "14134151", "title": "", "text": "liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). At summary judgment, the court must determine whether the rights allegedly violated were “clearly established at the time an action occurred.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The right must be “clearly established” in “a more particularized, and hence more relevant sense” than simply an abstract statement such as the right to due process. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of preexisting law the unlawfulness must be apparent.” 483 U.S. at 640, 107 S.Ct. at 3039 (citation omitted). Rephrasing this well-known principle, the Fifth Circuit has aptly observed: “One need not find a ‘goose case’ to imbue a warden at a jail with a constitutional duty to protect a prisoner prone to suicide from self-destruction.” Lewis v. Parish of Ter-rebonne, 894 F.2d 142, 145 (5th Cir.1990). The limits of qualified immunity are defined essentially in objective terms. “The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts.” Harlow v. Fitzgerald, 457 U.S. at 819, 102 S.Ct. at 2739. Smith relies in large part on Gagne v. City of Galveston, 805 F.2d 558 (5th Cir. 1986), which the appellants' brief describes as a “case quite similar to that at hand.” Gagne held that a jailer, who did not remove the belt of a prisoner with suicide scars on his arm or place the prisoner in a surveillance cell, was entitled to qualified" }, { "docid": "3925686", "title": "", "text": "Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). “A right is ‘clearly established’ for qualified immunity purposes if ‘[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Swenson v. Trickey, 995 F.2d 132, 133 (8th Cir.1993) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (alterations in original)). Our cases recently have reached different conclusions on the-question of when an individual’s right to free speech in public employment is “clearly established” for the purposes of qualified immunity. We have held that “when Pickering’s fact-intensive balancing test is at issue, the asserted First Amendment right ‘can rarely be considered “clearly established” for purposes of the Harlow qualified immunity standard.’ ” Buzek v. County of Saunders, 972 F.2d 992, 997 (8th Cir.1992) (quoting Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir.1992)). We also have recently held, however, (without reference to either Buzek or Bartlett) that “[n]o right is more clearly established in our republic than freedom of speech.” Casey v. City of Cabool, 12 F.3d 799, 804 (8th Cir.1993). We added that it is “ ‘clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.’ ” Id. (quoting Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987)); see also Duckworth v. Ford, 995 F.2d 858, 861 (8th Cir.1993) (concluding without reference to Bartlett or Buzek that defendant “not entitled to qualified immunity because the law was clearly established in 1988 that public employers could not retaliate against public employees for engaging in .protected speech or activity”). We must first determine which of these standards will control our determination of whether Grantham’s First Amendment right of free speech in the course of his public employment was clearly established. The district court applied the analysis set out in Bartlett and Buzek. In Bartlett, the plaintiff, a Missouri Highway Patrol officer, alleged that he was fired" }, { "docid": "6850038", "title": "", "text": "131 (7th Cir.1997). A defendant is entitled to qualified immunity on a motion to dismiss if the allegations of the complaint fail to “state a claim of violation of clearly established law.” Behrens v. Pelletier, 516 U.S. 299, 306, 116 S.Ct. 834, 839, 133 L.Ed.2d 773 (1996) (internal quotation marks omitted) (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815). Qualified immunity shields officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A right is clearly established when “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [T]he unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Even where a right is clearly established, an official is entitled to qualified immunity nevertheless if “it was objectively reasonable for the public official to believe that his acts did not violate th[at] right[].” Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991). The Supreme Court has expressed the preference that in evaluating a qualified immunity defense, we \"determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question.\" County of Sacramento v. Lewis, - U.S. -, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998). Topless dancing is \"expressive conduct within the outer perimeters of the First Amendment, though only marginally so.\" See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991). See also DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 409 (6th Cir.1997); D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 145 (4th Cir.1992). At least at this early stage, the plaintiffs are entitled to the benefit of every favorable" }, { "docid": "5611933", "title": "", "text": "to qualified immunity from Churchill’s claims because there was no clearly established law at the time of her discharge (or now) holding that it would be unconstitutional to fire her for the conduct that was reported to them. “[Government officials performing discretionary functions are shielded from liability for civil damages unless their conduct violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The principle behind the doctrine is that ‘[i]f the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful.' Id.” Greenberg v. Kmetko, 840 F.2d 467, 472 (7th Cir.1988). The employee must allege that the public employer violated a specific right rather than a generalized or abstract one: “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). The individual defendants rely upon our statement in Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.1988), that “the test for immunity should be whether the law was clear in relation to the specific facts confronting the public official when he acted.\" Id. (quoting Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir.1987). They assert that at the time of termination, the fact confronting them was that Churchill “had made negative and inappropriate comments about Waters and Davis” that they believed was interfering with working relationships in the hospital. Thus, as in their Mt. Healthy defense, the individual defendants would have us focus on what they knew (or did not" }, { "docid": "9781379", "title": "", "text": "denial of summary judgment involving qualified immunity de novo. Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court created the standard to determine whether a public official can assert the defense of qualified immunity: “[G]ov-ernmental officials ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. In Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court clarified the standard by concluding that qualified immunity “turns on the ‘objective legal reasonableness’ of the action ... assessed in light of the legal rules that were ‘clearly established’ at the time [the action] was taken.” Id. at 639, 107 S.Ct. at 3038 (citations omitted). The Court further stated that [i]t should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in light of preexisting law the unlawfulness must be apparent. Id. at 640, 107 S.Ct. at 3039 (citations omitted). “An official will be immune from liability if the applicable law was unclear or if a reasonable officer could have believed that his actions were lawful in light of the clearly established law and the information possessed by the officer.” Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1504 (11th Cir.1990). A right is clearly established if, in light of the preexisting law, the unlawfulness of the conduct is apparent to the reasonable official. See id. In this case, we are required to" }, { "docid": "14423239", "title": "", "text": "nor was it clearly established that the Free Speech Clause of the First Amendment prohibited adverse employment action based on statements such as Williams cites as the reason for her demotion. The district court’s determination that defendants were not entitled to qualified immunity is immediately appealable as a “final judgment” under the collateral order doctrine, and we therefore have jurisdiction over these qualified immunity issues. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Because the question of whether defendants are entitled to qualified immunity is a question of law, we review the district court’s determination on this issue de novo. E.g., Walton v. City of Southfield, 995 F.2d 1331, 1335 (6th Cir.1993). Government officials, such as the individual defendants in this case, have qualified immunity from personal liability for actions taken while performing discretionary functions. These officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly estab lished statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). If the right the government official allegedly violated was clearly established at the time of the challenged conduct, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Id. at 818-19, 102 S.Ct. at 2738-39. For a right to be clearly established, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). “[T]he particular conduct of the official must fall clearly within the area protected by the constitutional right, such that a reasonable official would have known that his or" }, { "docid": "409246", "title": "", "text": "to follow a course of action was made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. This lengthy instruction contained the adequate definition of official policy that we found missing in Westborough Mall, Inc. v. City of Cape Girardeau, 794 F.2d 330, 337-39 (8th Cir.1986), cert. denied, 480 U.S. 918, 107 S.Ct. 1373, 94 L.Ed.2d 688 (1987). There was sufficient evidence to support the jury’s finding that the County was liable under this standard. Poskochil’s broad discretion to set policy as the County's elected Sheriff, and the County Attorney’s testimony that Poskochil had exclusive authority to fire Buzek, adequately support the jury’s determination that Poskochil possessed the discretionary, policymaking authority necessary to hold the County liable for this decision. Compare City of St. Louis v. Praprotnik, 485 U.S. 112, 129-31, 108 S.Ct. 915, 927-28, 99 L.Ed.2d 107 (1988). Therefore, the County’s motion for j.n.o.v. was properly denied. C. Poskochil’s Claim of Qualified Immunity. Although he failed to move for summary judgment on this issue, Poskochil argues that he is entitled to qualified immunity on Buzek’s First Amendment damage claim as a matter of law. We review this question de novo. E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 477 (8th Cir.1989). Public officials are entitled to qualified immunity when their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). To be clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). It is settled under Connick that the State may not punish a public employee for engaging in constitutionally protected expression. However, this First Amendment right is not absolute. Under Pickering, the court must balance the employee’s right as a citizen to comment on matters of public concern and the public" }, { "docid": "12964627", "title": "", "text": "Amendment rights, they are protected by the doctrine of qualified immunity. That doctrine shields state officials from liability for damages if their actions did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), or even where the rights were clearly established, if it was objectively reasonable for the defendants to believe that their acts did not violate those rights, see Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987). The official does not have such immunity where the “contours of the right” were “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039. The district court here ruled that the law was clear at the time of the retaliation against Vasbinder, which commenced in November 1982, that defendants’ actions would violate his First Amendment rights. We agree. It was established at least as early as 1968 in Pickering v. Board of Education that a state employee’s good-faith public criticism of the allocation of public funds, was constitutionally protected where the efficiency of the public service the state was performing was not impaired thereby. 391 U.S. at 568, 569-73, 88 S.Ct. at 1734, 1735-37. In Dobosz v. Walsh, 892 F.2d 1135, 1141-42 (2d Cir.1989), this Court ruled that it was clearly established in 1981 that a municipal policeman cooperating with the FBI in an investigation of charges against another policeman was exercising his First Amendment right to free speech, and that the defendant who retaliated by suspending him was therefore not entitled to qualified immunity. In Rookard v. Health & Hospitals Corp., 710 F.2d 41, we dealt with another retaliatory demotion occurring in 1981 as a result of complaints of corrupt and wasteful practices, communicated by a municipal hospital’s director of nursing to a city official empowered to investigate. Noting that the charges involved a matter of" }, { "docid": "3329471", "title": "", "text": "halted because Wheaton and the Deputy Administrator agreed that Clacka-mas would not be ready to implement NEW JOBS on February 1, 1988 as scheduled. AFSD had a strong interest in the smooth implementation of NEW JOBS. This interest outweighed any personal interest that Wheaton had in expressing his dissent. Because Wheaton was not removed in retaliation for constitutionally protected speech, we affirm the summary judgment on his first amendment claim. IV QUALIFIED IMMUNITY The district court held that WebbPetett was entitled to qualified immunity on Wheaton’s property interest claim. Qualified immunity shields public employees who perform discretionary functions from liability for civil damages where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Whether the legal rights allegedly violated were clearly established must not be analyzed too abstractly. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). The appropriate inquiry is the particularized one of whether, in light of pre-existing law, the unlawfulness of the official’s actions must have been apparent. Id. at 640, 107 L.Ed.2d at 3039. Having reviewed the law that was clearly established in early 1988, we conclude that it would not have been apparent to a reasonable official that Wheaton had a property interest in his management service employment. As the district court noted, in January 1988 there was a dearth of case authority, either state or federal, concerning whether an Oregon management employee had a property interest in that employment. While relevant, this alone does not establish qualified immunity. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. Early in 1988, the general standard governing whether a public employee had a job property interest was clearly established. For claims like Wheaton’s, Supreme Court precedent required consideration of whether the employee had a “legitimate claim of entitlement” to the job, rather than a “unilateral expectation of it,” grounded in a source such as state law. See Board of Regents v. Roth, 408 U.S. 564, 577," }, { "docid": "5628844", "title": "", "text": "as a volunteer on the Hunger Commission is a somewhat different matter. There is no dispute that Cronin’s decision to terminate Lynch’s service on the Hunger Commission was communicated to Lynch in August, 1994. We assume, without deciding, that the opportunity to serve as a volunteer could constitute the type of valuable governmental benefit or privilege the deprivation of which can trigger First Amendment scrutiny. See Perry v. Sindermann, 408 U.S. at 597, 92 S.Ct. 2694. The district court ruled that Cronin was entitled to qualified immunity with regard to this adverse employment action. We agree. Government officials have qualified immunity from personal liability for actions taken while performing discretionary functions. They “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). See El Dia, Inc. v. Rossello, 165 F.3d 106, 109 (1st Cir.1999). If the right the government allegedly violated was clearly established at the time of the challenged conduct, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727. The Supreme Court has held that for a right to be clearly established, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). It was not “clearly established” as of August, 1994, when Lynch removed Cronin from the Hunger Commission, that a government official could not take such action in retaliation for protected speech. We recognize that the Supreme Court has held that a variety of public benefits, in addition" }, { "docid": "17146248", "title": "", "text": "stringent standards for a plaintiff seeking to overcome the affirmative defense of qualified immunity asserted by a government official in an individual capacity. “Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that ‘what he is doing’ violates federal law.” Lassiter, 28 F.3d at 1149 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). “For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.” Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir.) (en banc) (quoting Lassiter, 28 F.3d at 1150), cert. denied, — U.S. -, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997). III. Moran is entitled to summary judgment in her individual capacity on Gonzalez’s section 1983 claim only if Moran’s conduct did not violate clearly established First Amendment rights of which a reasonable government official in Moran’s position would have been aware. Because resolution of this question requires us to determine the contours of clearly established law, we have interlocutory jurisdiction to review the district court’s denial of summary judgment. See Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th Cir.1996). A public employee must satisfy four conditions in order to prevail in a section 1983 action alleging that she was fired in" }, { "docid": "6422704", "title": "", "text": "claimed that John V. Frye, Assistant Protection Division Chief, introduced him to the investigating officers on November 30, 1989, and told him he could not leave the room where he was detained for three hours of questioning. Frye then advised Vieira that he could choose to resign for personal reasons or be publicly fired. Defendant Robert B. King, Chief of Protection, and George J. Manville, Vieira’s immediate supervisor, advised Vieira that although he had been an excellent conservation agent, he could no longer work for the Department if he chose to act undercover for law enforcement. Vieira resigned because of the threat of being prosecuted for alleged illegal activities and the threat of being fired. He was constructively discharged and/or forced to resign on the basis of his association with individuals in his hometown in violation of the First Amendment. Defendant officials acted under color of law in violation of 42 U.S.C. § 1983. The district court held that these allegations did not state a violation of a clearly established right of freedom of association and granted defendants’ motion to dismiss. On appeal Vieira argues that his allegations of the violation of the right to associate with friends and acquaintances were sufficient to state a claim under § 1983. A public official performing discretionary functions is immune from liability for civil damages if his conduct does not violate clearly established constitutional rights of which a reasonable official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). A right is clearly established if “a reasonable official would understand that what he is doing violates that right ...” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). To be entitled to qualified immunity, an official’s conduct must be objectively reasonable with reference to clearly established law. Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984). The leading case on the types of association protected by the First Amendment is Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82" }, { "docid": "16817519", "title": "", "text": "DISCUSSION Summary judgment is appropriate when no genuine issue of material fact is in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. We review grants of summary judgment de novo, drawing all inferences in favor of the nonmoving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). Therefore, Bieluch must have his allegations taken as true, and is entitled to receive the benefit of the doubt when his assertions conflict with those of Sullivan. See Piesco v. City of New York, Dept. of Personnel, 938 F.2d 1149, 1154 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991). The affirmative defense of qualified immunity shields government officials performing discretionary functions from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Whether qualified immunity is warranted “generally turns on the ‘objective legal reasonableness’ of the action”. Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (quoting Harlow, 457 U.S. at 819, 102 S.Ct. at 2739). If the law claimed to have been violated was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his or her conduct. Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39. Public employees do not relinquish their first-amendment rights when they begin working for the government, Rankin v. McPherson, 483 U.S. 378, 383-84, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315 (1987); Piesco, 933 F.2d at 1155; nevertheless, the government does have an interest in regulating the speech of its employees that is significantly different from its interest in regulating the speech of the citizenry in general. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Due to the government’s countervailing interests, the “clearly established law” surrounding first-amendment" }, { "docid": "19706309", "title": "", "text": "that the Policy would be applied in such a way as to punish his longstanding teaching style — a style which, until the College imposed punishment upon Cohen under the Policy, had apparently been considered pedagogically sound and within the bounds of teaching methodology permitted at the College. B. Qualified Immunity “We review de novo a district court’s decision on qualified immunity in a section 1983 action.” Newell v. Sauser, 79 F.3d 115, 117 (9th Cir.1996). The doctrine of qualified immunity shields public officials performing discretionary functions from personal liability under certain circumstances. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). As the Supreme Court explained in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), “whether an official protected by qualified immunity may be held personally hable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, as sessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Id. at 635, 107 S.Ct. at 3036 (citations omitted) (quoting Harlow, 457 U.S. at 818, 819, 102 S.Ct. at 2738, 2738-2739). Thus, government officials performing discretionary functions, such as, in this case, demoting, evaluating and disciplining Cohen, are entitled to qualified immunity from civil liability when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Lindsey v. Shalmy, 29 F.3d 1382, 1384 (9th Cir.1994). The relevant inquiry is whether the defendants reasonably could have believed that their conduct was lawful “in light of clearly established law and the information [that they] possessed.” Baker v. Racansky, 887 F.2d 183, 187 (9th Cir.1989) (internal quotations omitted). For a right to be clearly established, it must be “ ‘sufficiently clear that a reasonable official would understand that what he is doing violates that right_ [I]n the light of preexisting law the unlawfulness must be apparent.’ ” Id. at 186 (quoting Anderson, 483 U.S. at 639-640, 107 S.Ct. at 3039). It is the plaintiffs burden to prove that the" }, { "docid": "2005831", "title": "", "text": "known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “The doctrine of qualified immunity shields a police officer from liability for civil damages when a reasonable officer could have believed that the challenged conduct did not violate clearly established statutory or constitutional rights.” Husband v. Bryan, 946 F.2d 27, 30 (5th Cir.1991) (quoting Simpson v. Hines, 903 F.2d 400, 402 (5th Cir.1990)); see Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir.1990). Qualified immunity is available to state officials sued for constitutional violations pursuant to 42 U.S.C. § 1983. See Harlow, 457 U.S. at 818 n. 30, 102 S.Ct. at 2738 n. 30 (citing Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978)). Whether a government official is entitled to qualified immunity “generally turns on the ‘objective reasonableness of the action’ assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Texas Faculty Ass’n v. University of Texas at Dallas, 946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)). The law is deemed to be clearly established if the contours of a right asserted are sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. at 389-90. The standard is formulated at this level of generality in order to afford the measure of protection that the doctrine is intended to confer. See Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3039. Therefore, “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence, more relevant sense.” Id. at 640, 107 S.Ct. at 3039. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right.” Id. If reasonable public officials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified immunity. Pfannstiel v. City of Manon, 918 F.2d 1178, 1183 (5th Cir.1990). Whether the conduct" }, { "docid": "4258780", "title": "", "text": "of the fired employee is incidental to the firing official's real motivation to reward loyal supporters for their affiliation with him. . For this reason we are satisfied that, even if we were to find that Ms. Smith had alleged the violation of a constitutional right, Judge Frye would nonetheless be entitled to qualified immunity in this case. Under the doctrine of qualified immunity, government officials are generally immune “from liability for civil damages insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S:Ct. 2727, 73 L.Ed.2d 396 (1982); see also Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir.2007). The Supreme Court has held that \"the test of 'clearly established law’ ” is not to be applied at a level of broad \"generality” but rather, “the right the official is alleged to have violated must have been 'clearly established’ in a more particularized, and hence more relevant, sense.” Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). \"[I]n the light of preexisting law the unlawfulness [of the official’s actions] must be apparent.” Id. at 640, 107 S.Ct. 3034. Ms. Smith admits that she cannot \"identif[y] a case under 42 U.S.C. § 1983 directly on point,” Appellants’ Br. at 14, and neither can we. Given this, and our discussion of the cases applying Elrod, any unlawfulness of Judge Frye’s actions here in firing Ms. Smith could only have been \"[unjappar-ent,” Anderson, 483 U.S. at 640, 107 S.Ct. 3034, and therefore not likely to be \"known [by] ... á reasonable person,” Harlow, 457 U.S. at 818, 102 S.Ct. 2727. . The uncertainty regarding whether Ms. Smith's position was of the type entitled to Elrod's protections provides another reason that, even if Ms. Smith could state a claim under Elrod, Judge Frye would be entitled to qualified immunity. It is not \"clearly established\" that Ms. Smith’s position is a protected one, rather than one for which political affiliation is a legitimate job requirement. See Jenkins, 119 F.3d at" } ]

[ { "docid": "5998022", "title": "", "text": "Court looked to whether there were alternate methods of reaching the state’s goal that would be less burdensome on nonresidents. 437 U.S. at 526-27, 98 S.Ct. at 2487-2488. Until the last few years, no court to our knowledge has ever suggested that the privileges and immunities clause stripped a state’s supreme court of the power to limit bar membership to state residents. Recently, however, a number of courts, like the district court in the present case, have analyzed bar residency requirements in terms similar to those set forth in Hicklin. E.g., Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155 (D.S.D.1982); Sheley v. Alaska Bar Association, 620 P.2d 640 (Alaska 1980); Gordon v. Commission on Character and Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (N.Y.1979). Viewing the practice of law as indistinguishable from other private callings, these courts have applied the rigorous two-part test discussed in Hicklin to bar residency requirements. See also Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D.Ala.1981); Noll v. Alaska Bar Association, 649 P.2d 241 (Alaska 1982); Sargus v. West Virginia Board of Law Examiners, 294 S.E.2d 440 (W.Va.1982). Not surprisingly, they have found that the requirements failed to satisfy this exacting scrutiny. We do not believe, however, that the analysis developed by the Supreme Court in cases involving state restrictions upon other occupations is dispositive of the bar membership issue. The Supreme Court has pointed out that the privileges and immunities clause does not prohibit states from ever using state citizenship or residency to distinguish among persons. See, e.g., Baldwin v. Montana Fish and Game Commission, 436 U.S. 371, 383, 98 S.Ct. 1852, 1860, 56 L.Ed.2d 354 (1977). “Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual states.” Id. Precisely because the- privileges and immunities clause was designed to preserve a federal system, there has to be some point where limitations linked to affiliation with a given state are accorded validity. Were the clause to forbid all distinctions made upon the basis of state citizenship, the concept of statehood would" } ]

[ { "docid": "16047391", "title": "", "text": "bar exam, provided he had practiced continuously for five of the last seven years in a jurisdiction to whose bar he had been admitted, Ill.S.Ct.R. 705, as Sestric has (we shall call this the “continuous practice” requirement). Therefore he is treated less favorably than a class of (new) Illinois residents. This difference is the basis of Ses-tric’s present claim under the privileges and immunities clause. Whether such a difference violates the clause, or any other provision of the Constitution, is one of first impression at the federal appellate level, although the Massachusetts Supreme Court has held a similar regulation to be in violation of the clause. In re Jadd, 391 Mass. 227, 236-37, 461 N.E.2d 760, 765-66 (1984). Several decisions, one by this court, uphold the constitutionality of continuous-practice requirements. See Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983); Salibra v. Supreme Court of Ohio, 730 F.2d 1059, 1062-64 (6th Cir.1984); Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y. 1982), aff’d on the district court’s opinion, 702 F.2d 46 (2d Cir.1983) (per curiam). And Hawkins v. Moss, 503 F.2d 1171 (4th Cir.1974), upholds the denial of the continuous-practice exemption to a lawyer whose state of licensing does not reciprocate the exemption. Although none of these cases is directly in point, since the plaintiffs were residents complaining about a requirement that Sestric (a nonresident) satisfies, all contain dicta which east doubt on the validity of Sestric’s claim. For example, we said in Lowrie that “there is no residency requirement preventing Lowrie from taking the Illinois bar examination in the first instance. The years of practice and residency requirement at issue in this case prevent Lowrie from being admitted to the Illinois bar without examination. It is primarily for this reason, as well as on the ground that we are unable to, as amicus curíae does, ascribe to the Illinois Supreme Court a motive of discouraging out-of-state lawyers from migrating to Illinois, that we find the [amicus’s] Privileges and Immunities Clause contentions devoid of merit.” 716 F.2d at 414 (emphasis in original). See also 730 F.2d at 1063, 1065; 503 F.2d at" }, { "docid": "16047390", "title": "", "text": "out of law school, like the plaintiff, used to be denied this right; but that exclusion, the focus of the plaintiff’s challenge in the district court, was rescinded while the appeal in this case was pending. See Rule 703 of the Illinois Supreme Court (Sept. 14, 1984). Though it was not till his reply brief in this court that Sestric redirected his attack to the requirement that he sit for the bar exam, the rule change that ended the exclusion of nonresident lawyers who were more than six years out of law school came after he filed his brief; so he is not subject to criticism for having changed his theory when he did. We could remand the case to the district court to consider the new theory before we do, but since it raises only pure issues of law and the district judge who decided the case has died, the delays involved in a remand would not be justified. If Sestric moved to Illinois he would be excused from having to take the Illinois bar exam, provided he had practiced continuously for five of the last seven years in a jurisdiction to whose bar he had been admitted, Ill.S.Ct.R. 705, as Sestric has (we shall call this the “continuous practice” requirement). Therefore he is treated less favorably than a class of (new) Illinois residents. This difference is the basis of Ses-tric’s present claim under the privileges and immunities clause. Whether such a difference violates the clause, or any other provision of the Constitution, is one of first impression at the federal appellate level, although the Massachusetts Supreme Court has held a similar regulation to be in violation of the clause. In re Jadd, 391 Mass. 227, 236-37, 461 N.E.2d 760, 765-66 (1984). Several decisions, one by this court, uphold the constitutionality of continuous-practice requirements. See Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983); Salibra v. Supreme Court of Ohio, 730 F.2d 1059, 1062-64 (6th Cir.1984); Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y. 1982), aff’d on the district court’s opinion, 702 F.2d 46 (2d Cir.1983) (per curiam). And Hawkins" }, { "docid": "22144422", "title": "", "text": "“obtaining jurisdiction over them for bar discipline purposes.” In re Jadd, 391 Mass., at 234, 461 N. E. 2d, at 765. A committee of the Oregon Bar voiced a similar sentiment: “[W]hy should it be more difficult for the Multnomah County courts to control an attorney from Vancouver, Washington, than from Lakeview, Oregon, if both attorneys are members of the Oregon Bar and subject to its rules and discipline?” Bar Admissions Study Committee, Report to the Supreme Court of Oregon 19 (Jan. 19, 1979). In many situations, unscheduled hearings may pose only a minimal problem for the nonresident lawyer. Conference telephone calls are being used increasingly as an expeditious means of dispatching pretrial matters. Hanson, Olson, Shuart, & Thornton, Telephone Hearings in Civil Trial Courts: What Do Attorneys Think?, 66 Judicature 408, 408-409 (1983). The El Paso, Texas, Bar has adopted a mandatory pro bono plan, under which each of its members must handle two divorce cases for indigents each year. Pro Bono Publico: Federal Legal-Aid Cuts Spur the Bar to Increase Free Work for the Poor, The Wall Street Journal, Mar. 30, 1984, pp. 1, 12. Justice Rehnquist suggests another “substantial reason” for the residency requirement: the State’s “interest in maximizing the number of resident lawyers, so as to increase the quality of the pool from which its lawmakers can be drawn.” Post, at 292. Only 8 of the 424 members of New Hampshire’s bicameral legislature are lawyers. Statistics compiled by the Clerk of the New Hampshire House of Representatives and the Clerk of the New Hampshire Senate. Moreover, New Hampshire, unlike many other States, see, e. g., Mich. Const., Art. 6, § 19, does not prohibit nonlawyers from serving on its Supreme Court, N. H. Rev. Stat. Ann. § 490:1 et seq. (1983 and Supp. 1983), or its intermediate appellate court, N. H. Rev. Stat. Ann. § 491:1 et seq. (1983 and Supp. 1983). Therefore, it is not surprising that the dissent’s justification for the residency requirement was not raised by appellant or addressed by the courts below. Justice White, concurring in the result. Appellee Piper lives only" }, { "docid": "22049829", "title": "", "text": "survive the Court’s analysis even if the State demonstrated a compelling interest in rewarding volunteer activity or promoting conservation measures. The Court’s opinion, although purporting to apply a deferential standard of review, actually insures that any governmental program depending upon a “past contributions” rationale will violate the Equal Protection Clause. While the Clause refers to “Citizens,”' this Court has found that “the terms ‘citizen’ and ‘resident’ are ‘essentially interchangeable’... for purposes of analysis of most cases under the Privileges and Immunities Clause.” Hicklin v. Orbeck, 437 U. S. 518, 524, n. 8 (1978) (quoting Austin v. New Hampshire, 420 U. S. 656, 662, n. 8 (1975)). This opinion, therefore, will refer to “nonresidents” of Alaska, as well as to “noncitizens” of that State. It is settled that the Privileges and Immunities Clause does not protect corporations. See Paul v. Virginia, 8 Wall. 168 (1869). The word “Citizens” suggests that the Clause also excludes aliens. See, e. g., id., at 177 (dictum); L. Tribe, American Constitutional Law §6-33, p. 411, n. 18 (1978). Any prohibition of discrimination aimed at aliens or corporations must derive from other constitutional provisions. See generally Ward v. Maryland, 12 Wall. 418, 430 (1871) (The Clause “plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business, without molestation; to acquire personal property; [and] to take and hold real estate . . .”). See Note, A Constitutional Analysis of State Bar Residency Requirements under the Interstate Privileges and Immunities Clause of Article IV, 92 Harv. L. Rev. 1461,1464-1465, n. 17 (1979) (labeling contrary argument “technical”). As the Court points out, ante, at 59-60, n. 5, Alaska’s plan differentiates even among native Alaskans, by tying their benefits to date of birth. If the scheme merely distributed benefits on the basis of age, without reference to the date beneficiaries established residence in Alaska, I doubt it would violate the Privileges and Immunities Clause. Under those circumstances, a 25-year-old Texan establishing residence in Alaska would acquire the" }, { "docid": "5995405", "title": "", "text": "law. [It] can, and does, require appropriate training and familiarity with [state] law. Apart from such tests of competence, it requires a new lawyer to take both an “attorney’s oath” to perform his functions faithfully and honestly and a “commissioner’s oath” to “support the constitution of the United States, and the constitution of [the state].” ... [The state] may quite properly conduct a character investigation to insure in any given case “that an applicant is not one who ‘swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath.’ ” Moreover, once admitted to the bar, lawyers are subject to continuing scrutiny by the organized bar and the courts. In addition to discipline for unprofessional conduct, the range of post-admission sanctions extends from judgments for contempt to criminal prosecutions and disbarment. In sum, the [bar committee] simply has not established that it must exclude all aliens from the practice of law in order to vindicate its undoubted interest in high professional standards. 413 U.S. at 726-27, 93 S.Ct. at 2857-58 (citations omitted). A number of states have recently abandoned their own bar residency requirements. See, e.g., Stalland, 530 F.Supp. 155 (D.S.D.1982); Noll v. Alaska Bar Ass’n, 649 P.2d 241 (Alaska 1982); Sargus v. West Virginia Bd. of Law Examiners, 294 S.E.2d 440 (W.Va.1982); Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D.Ala.1981); Sheley v. Alaska Bar Ass’n, 620 P.2d 640 (Alaska 1980); Gordon v. Commission on Character & Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979). Whether these cases reflect the aftermath of the Supreme Court’s “revitalization” of the privileges and immunities clause in Baldwin and Hicklin, see generally Note, 92 Harv.L.Rev. 1461, or the growth of nationwide law practice and law firms, the trend toward in-house counsel for national and multinational corporations, and the emergence of specialized fields extending across state lines, they do show at the very least that other states have not found residency requirements necessary for effective regulation of state bars. To permit states to impose residency requirements unrelated to a legitimate interest in the quality" }, { "docid": "22144411", "title": "", "text": "in practicing law is a “privilege” protected by the Clause. Although the lawyer is “an officer of the court,” he does not hold a position that can be entrusted only to a “full-fledged member of the political community.” A State may discriminate against nonresidents only where its reasons are “substantial,” and the difference in treatment bears a close or substantial relation to those reasons. No such showing has been made in this case. Accordingly, we affirm the judgment of the Court of Appeals. It is so ordered. Rule 42 does not provide explicitly that only New Hampshire residents may be admitted to the bar. It does require, however, that an applicant either be a resident of New Hampshire or file a statement of intent to reside there. N. H. Sup. Ct. Rule 42(3). In an affidavit submitted to the District Court, the Chief Justice of the Supreme Court of New Hampshire said that under the Rule, an applicant for admission must be “a bona fide resident of the State ... at the time that the oath of office ... is administered.” Affidavit of John W. King, App. 32. Accordingly, the parties agree that the refusal to admit Piper to the bar was based on Rule 42. Piper was not excluded totally from the practice of law in New Hampshire. Out-of-state lawyers may appear pro hac vice in state court. This alternative, however, does not allow the nonresident to practice in New Hampshire on the same terms as a resident member of the bar. The lawyer appearing pro hac vice must be associated with a local lawyer who is present for trial or argument. See N. H. Sup. Ct. Rule 33(1); N. H. Super. Ct. Rule 19. Furthermore, the decision on whether to grant pro hac vice status to an out-of-state lawyer is purely discretionary. See Leis v. Flynt, 439 U. S. 438, 442 (1979) (per curiam). The District Court did not consider Piper’s claims that Rule 42: (i) deprived her of property without due process of law, in violation of the Fourteenth Amendment; (ii) denied her equal protection of the" }, { "docid": "22144421", "title": "", "text": "primarily to prevent such economic protectionism. Because it is markedly over inclusive, the residency requirement does not bear a substantial relationship to the State’s objective. A less restrictive alternative would be to require mandatory attendance at periodic seminars on state practice. There already is a rule requiring all new admittees to complete a “practical skills course” within one year of their admission. N. H. Sup. Ct. Rule 42(7). New Hampshire’s “simple residency” requirement is under inclusive as well, because it permits lawyers who move away from the State to retain their membership in the bar. There is no reason to believe that a former resident would maintain a more active practice in the New Hampshire courts than would a nonresident lawyer who had never lived in the State. The New Hampshire Bar would be able to discipline a nonresident lawyer in the same manner in which it disciplines resident members. The Supreme Judicial Court of Massachusetts has stated that although there are over 5,000 nonresident members of the Massachusetts Bar, there has been no problem “obtaining jurisdiction over them for bar discipline purposes.” In re Jadd, 391 Mass., at 234, 461 N. E. 2d, at 765. A committee of the Oregon Bar voiced a similar sentiment: “[W]hy should it be more difficult for the Multnomah County courts to control an attorney from Vancouver, Washington, than from Lakeview, Oregon, if both attorneys are members of the Oregon Bar and subject to its rules and discipline?” Bar Admissions Study Committee, Report to the Supreme Court of Oregon 19 (Jan. 19, 1979). In many situations, unscheduled hearings may pose only a minimal problem for the nonresident lawyer. Conference telephone calls are being used increasingly as an expeditious means of dispatching pretrial matters. Hanson, Olson, Shuart, & Thornton, Telephone Hearings in Civil Trial Courts: What Do Attorneys Think?, 66 Judicature 408, 408-409 (1983). The El Paso, Texas, Bar has adopted a mandatory pro bono plan, under which each of its members must handle two divorce cases for indigents each year. Pro Bono Publico: Federal Legal-Aid Cuts Spur the Bar to Increase Free Work for" }, { "docid": "22144413", "title": "", "text": "law, in violation of the Fourteenth Amendment; and (iii) placed an undue burden upon interstate commerce, in violation of Art. I, § 8, of the United States Constitution. The Court of Appeals did not address these claims, and our resolution of this case makes it unnecessary for us to reach them. The panel, with one judge dissenting, had reversed the District Court’s judgment. 723 F. 2d 98 (1983). The prevailing judges thought it significant that three State Supreme Courts had invalidated their own bar residency requirements. Sargus v. West Virginia Board of Law Examiners,-W. Va.-, 294 S. E. 2d 440 (1982); Noll v. Alaska Bar Assn., 649 P. 2d 241 (Alaska 1982); Gordon v. Committee on Character and Fitness, 48 N. Y. 2d 266, 397 N. E. 2d 1309 (1979). Since the Court of Appeals decision in this case, another State Supreme Court has reached the same conclusion. In re Jadd, 391 Mass. 227, 461 N. E. 2d 760 (1984). Under this Clause, the terms “citizen” and “resident” are used interchangeably. See Austin v. New Hampshire, 420 U. S. 656, 662, n. 8 (1975). Under the Fourteenth Amendment, of course, “[a]ll persons born or naturalized in the United States... are citizens ... of the State wherein they reside.” Article IV of the Articles of Confederation provided: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States . . . shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof. . . .” Charles Pinckney, who drafted the Privileges and Immunities Clause, stated that it was “formed exactly upon the principles of the 4th article of the present Confederation.” 3 M. Farrand, Records of the Federal Convention of 1787, p. 112 (1911). This Court has recognized the" }, { "docid": "22049828", "title": "", "text": "previously have contributed their time to volunteer community organizations. If the State graded its dividends according to the number of years devoted to prior community service, it could be said that the State intended “to reward citizens for past contributions.” Alternatively, a State might enact a tax credit for citizens who contribute to the State’s ecology by building alternative fuel sources or establishing recycling plants. If the State made this credit retroactive, to benefit those citizens who launched these improvements before they became fashionable, the State once again would be rewarding past contributions. The Court’s opinion would dismiss these objectives as wholly illegitimate. I would recognize them as valid goals and inquire only whether their implementation infringed any constitutionally protected interest. The Court’s conclusion that Alaska’s scheme lacks a rational basis masks a puzzling aspect of its analysis. By refusing to extend any legitimacy to Alaska’s objective, the Court implies that a program designed to reward prior contributions will never survive equal protection scrutiny. For example, the programs described in n. 1, supra, could not survive the Court’s analysis even if the State demonstrated a compelling interest in rewarding volunteer activity or promoting conservation measures. The Court’s opinion, although purporting to apply a deferential standard of review, actually insures that any governmental program depending upon a “past contributions” rationale will violate the Equal Protection Clause. While the Clause refers to “Citizens,”' this Court has found that “the terms ‘citizen’ and ‘resident’ are ‘essentially interchangeable’... for purposes of analysis of most cases under the Privileges and Immunities Clause.” Hicklin v. Orbeck, 437 U. S. 518, 524, n. 8 (1978) (quoting Austin v. New Hampshire, 420 U. S. 656, 662, n. 8 (1975)). This opinion, therefore, will refer to “nonresidents” of Alaska, as well as to “noncitizens” of that State. It is settled that the Privileges and Immunities Clause does not protect corporations. See Paul v. Virginia, 8 Wall. 168 (1869). The word “Citizens” suggests that the Clause also excludes aliens. See, e. g., id., at 177 (dictum); L. Tribe, American Constitutional Law §6-33, p. 411, n. 18 (1978). Any prohibition of" }, { "docid": "5995422", "title": "", "text": "a political subdivision thereof, as well as a “current intent to designate that place of abode as [the] principal place of physical presence for the indefinite future to the exclusion of all others.” N.H.Rev.Stat.Ann. ch. 21, § 6. . It is settled that for purposes of the privileges and immunities clause the terms “citizen” and “resident” are interchangeable. See Hicklin v. Orbeck, 437 U.S. 518, 524 n. 8, 98 S.Ct. 2482, 2486 n. 8, 57 L.Ed.2d 397 (1978). . The Hicklin Court cited three cases in which the Supreme Court, relying on the commerce clause, invalidated state attempts to limit use of in-state resources to state residents. In West v. Kansas Natural Gas, 221 U.S. 229, 31 S.Ct. 564, 55 L.Ed. 716 (1911), the Court held that Oklahoma’s prohibition on out-of-state shipment of in-state natural gas violated the commerce clause; in Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923), the Court held that West Virginia’s requirement that natural gas companies give preference to state residents violated the commerce clause; and in Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 49 S.Ct. 1, 73 L.Ed. 147 (1928), the Court held that the commerce clause prohibited Louisiana from requiring instate processing of indigenous shrimp as a prerequisite to shipment out of state. . The proportion of lawyers who engage in litigation is small compared to the number whose practice is devoted to the commercial aspects of modem life. As a practical matter, the activities of many, if not most, bar members are essentially commercial. It may also be noted in passing that if the New Hampshire bar residency requirement were upheld, it would, taken together with Griffiths, create the anomaly of a state being permitted to exclude nonresident citizens of the United States but not residents whose allegiance is to another country. . The cases holding that members of one state’s bar have no constitutional due process right to argue pro hac vice before the courts of another state do not affect the applicability of Hicklin in the privileges and immunities context. Leis v. Fiynt, 439" }, { "docid": "16047398", "title": "", "text": "law in Illinois to take the bar exam. As of course it could do: “Our holding in this case does not interfere with the ability of the states to regulate their bars. The nonresident who seeks to join a bar, unlike- the pro hae vice applicant, must have the same professional and personal qualifications required of resident lawyers.” Supreme Court of New Hampshire v. Piper, supra, 105 S.Ct. at 1278 n. 16. See also In re Gordon, 48 N.Y.2d 266, 273, 42 N.Y.S.2d 641, 645, 397 N.E.2d 1309, 1313 (1979). Few states want to admit to their bars every lawyer admitted in one of the other 49 states. To avoid this a state need only, under Sestric’s view of privileges and immunities, require every lawyer who wants to practice in the state to take the state’s bar exam. Such a rule would bear harder on nonresidents as a class than the rule that Sestric challenges, by making it more costly for them to become residents. Though clearly constitutional, such a rule would not help Sestric or any other nonresident; it would just hurt recent nonresidents (= new residents). This suggests that there is something amiss with Sestric’s claim. And, indeed, even at the purely verbal level of constitutional interpretation a nonresident’s complaint about a burden (taking the bar exam) that also rests on many residents (all but new residents) does not fit the privileges and immunities clause comfortably. The clause speaks of the privileges and immunities “of Citizens in the several States,” and in this case it may be asked: which citizens of Illinois — old ones or new ones — provide the measure of Sestric’s rights? There is also a substantial argument of policy. If (unlike the present case) the State of Illinois, while allowing nonresidents to practice law if they passed the bar exam, allowed any resident to practice law without having to pass the bar exam, it would be discriminating in favor of residents and against nonresidents. There would be a suspicion that the discrimination was unjustified — a needless though far from insurmountable obstacle to interstate" }, { "docid": "22279913", "title": "", "text": "citizens of State B enjoy. For protection of such equality the citizen of State A was not to be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation.” Toomer v. Witsell, 334 U. S. 385, 395 (1948) (footnote omitted). Municipal residency classifications, it is argued, simply do not give rise to the same concerns. We cannot accept this argument. We have never read the Clause so literally as to apply it only to distinctions based on state citizenship. For example, in Mullaney v. Anderson, 342 U. S. 415, 419-420 (1952), the Court held that the Alaska Territory had no more freedom to discriminate against those not residing in the Territory than did any State to favor its own citizens. And despite some initial uncertainty, compare Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 78-79 (1920), and Blake v. McClung, 172 U. S. 239, 246-247 (1898), with Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377, 386-387 (1929), and La Tourette v. McMaster, 248 U. S. 465, 469-470 (1919), it is now established that the terms “citizen” and “resident” are “essentially interchangeable,” Austin v. New Hampshire, 420 U. S. 656, 662, n. 8 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause. See Hicklin v. Orbeck, supra, at 524, n. 8; Toomer v. Witsell, supra, at 397. A person who is not residing in a given State is ipso facto not residing in a city within that State. Thus, whether the exercise of a privilege is conditioned on state residency or on municipal residency he will just as surely be excluded. Given the Camden ordinance, an out-of-state citizen who ventures into New Jersey will not enjoy the same privileges as the New Jersey citizen residing in Camden. It is true that New Jersey citizens not residing in Camden will be affected by the ordinance as well as out-of-state citizens. And it is true that the disadvantaged New Jersey residents have no claim under the Privileges and Immunities Clause. Slaughter-House Cases, 16 Wall. 36, 77 (1873)." }, { "docid": "22617464", "title": "", "text": "856 (Miss. 1983); People v. Gonzalez, 47 N. Y. 2d 606, 393 N. E. 2d 987 (1979); Shipman v. Gladden, 253 Ore. 192, 453 P. 2d 921 (1969); Commonwealth v. Wilkerson, 490 Pa. 296, 416 A. 2d 477 (1980); Grooms v. State, 320 N. W. 2d 149 (S. D. 1982); In re Savo, 139 Vt. 527, 431 A. 2d 482 (1981); Rhodes v. Leverette, 160 W. Va. 781, 239 S. E. 2d 136 (1977). These cases diverge widely in the standards used to judge ineffectiveness, the remedy ordered, and the rationale used. We express no opinion as to the merits of any of these decisions. In Stahl v. Commonwealth, 613 S. W. 2d 617 (1981), the Kentucky-Supreme Court noted that, if on a postconviction motion the defendant could prove that counsel was ineffective on appeal, “the proper procedure is for the trial court to vacate the judgment and enter a new one, whereupon an appeal may be taken from the new judgment.” Id., at 618. See also Rodriquez v. United States, 395 U. S. 327, 332 (1969) (ordering similar remedy for denial of appeal in federal prosecution); United States v. Winterhalder, 724 F. 2d 109 (CA10 1983) (per curiam) (discussing remedies). See supra, at 396-397. See also Bearden v. Georgia, 461 U. S. 660, 665 (1983). We went on in Ross to analyze the issue presented there — the right to counsel on discretionary appeals — primarily in terms of the Equal Protection Clause. See 417 U. S., at 611. However, neither Ross nor any of the other eases in the Griffin line ever rejected the proposition that the Due Process Clause exerted a significant influence on our analysis in this area. Chief Justice Burger, dissenting. New things have so plagued the administration of criminal justice, or contributed more to lowered public confidence in the courts, than the interminable appeals, the retrials, and the lack of finality. Today, the Court, as Justice Rehnquist cogently points out, adds another barrier to finality and one that offers no real contribution to fairer justice. I join Justice Rehnquist in dissenting. Justice Rehnquist, with" }, { "docid": "22316205", "title": "", "text": "attendance at an educational or training institution, or for absences for good cause, is physically present in the state for a period of one year immediately before the time his status is determined; “(B) maintains a place of residence in the state; “(C) has established residency for voting purposes in the state; “(D) has not, within the period of required residency, claimed residency in another state; and “(E) shows by all attending circumstances that his intent is to make Alaska his permanent residence.” Appellees have not cross-appealed this portion of the Alaska Supreme Court’s decision, which rests upon an independent and adequate state ground. Murdock v. Memphis, 20 Wall. 590 (1875). As to the remaining three appellants — Sidney S. Hieklin, Ruby E. Dorman, and Harry A. Browning — the case does appear moot. At the time this suit was instituted, all three claimed to be Alaskan residents, but none had lived in the State continuously for one year. Record 45, 51-52, 126-127. Consequently, the only aspect of Alaska Hire they challenged was the Act’s one-year durational residency requirement. When this requirement was held invalid by the Alaska Supreme Court, their controversy with the appellees seems to have terminated. Although this Court has not always equated state residency with state citizenship, compare Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 78-79 (1920), and Blake v. McClung, 172 U. S. 239, 246-247 (1898), with Southern R. Co. v. Mayfield, 340 U. S. 1, 3-4 (1950); Douglas v. New Haven R. Co., 279 U. S. 377, 386-387 (1929); and La Tourette v. McMaster, 248 U. S. 465, 469-470 (1919), it is now established that the terms “citizen” and “resident” are “essentially interchangeable,” Austin v. New Hampshire, 420 U. S. 656, 662 n. 8 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause of Art. IV, § 2. See Toomer v. Witsell, 334 U. S. 385, 397 (1948). Cf. Edwards v. California, 314 U. S. 160 (1941). For example, a report quoted in the State’s Memorandum in Opposition to Plaintiffs’ Motion for Partial Preliminary Injunction" }, { "docid": "5995406", "title": "", "text": "at 2857-58 (citations omitted). A number of states have recently abandoned their own bar residency requirements. See, e.g., Stalland, 530 F.Supp. 155 (D.S.D.1982); Noll v. Alaska Bar Ass’n, 649 P.2d 241 (Alaska 1982); Sargus v. West Virginia Bd. of Law Examiners, 294 S.E.2d 440 (W.Va.1982); Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D.Ala.1981); Sheley v. Alaska Bar Ass’n, 620 P.2d 640 (Alaska 1980); Gordon v. Commission on Character & Fitness, 48 N.Y.2d 266, 422 N.Y.S.2d 641, 397 N.E.2d 1309 (1979). Whether these cases reflect the aftermath of the Supreme Court’s “revitalization” of the privileges and immunities clause in Baldwin and Hicklin, see generally Note, 92 Harv.L.Rev. 1461, or the growth of nationwide law practice and law firms, the trend toward in-house counsel for national and multinational corporations, and the emergence of specialized fields extending across state lines, they do show at the very least that other states have not found residency requirements necessary for effective regulation of state bars. To permit states to impose residency requirements unrelated to a legitimate interest in the quality of bar applicants would not only violate the privileges and immunities clause, but also pave the way for more burdensome and arbitrary requirements. Because New Hampshire has not advanced valid reasons for discriminating against nonresidents with respect to bar admissions, and because its rule bears no substantial relation to its stated purposes, we would hold the rule unconstitutional, and affirm the judgment of the district court. LEVIN H. CAMPBELL, Chief Judge, and BREYER, Circuit Judge. The facts are adequately stated in Judge Bownes’ opinion, and we need not repeat them here. Unlike our brethren, we believe that New Hampshire’s bar residency requirement is constitutional. The major difference between us and our brethren arises out of our belief that principles of federalism require giving greater weight than did the district court to the right of each state court to set bar standards, including bar residency standards. The legal profession has a special relationship, grounded in the history of our nation, with the judicial branch of the state by and before which a particular lawyer is licensed" }, { "docid": "22753554", "title": "", "text": "denied sub nom. Williams v. United States, 461 U. S. 931 (1983); United States v. Reicherter, supra, at 399; United States v. Vahalik, 606 F. 2d 99, 100-101 (CA5 1979) (per curiam), cert. denied, 444 U. S. 1081 (1980); United States v. Crowell, 586 F. 2d 1020, 1025 (CA4 1978), cert. denied, 440 U. S. 959 (1979); Magda v. Benson, 536 F. 2d 111, 112-113 (CA6 1976) (per curiam); United States v. Mustone, 469 F. 2d 970, 972-974 (CA1 1972). In United States v. Thornton, 241 U. S. App. D. C. 46, 56, and n. 11, 746 F. 2d 39, 49, and n. 11 (1984), the court observed that “the overwhelming weight of authority rejects the proposition that a reasonable expectation of privacy exists with respect to trash discarded outside the home and the curtilege [sic] thereof.” In addition, of those state appellate courts that have considered the issue, the vast majority have held that the police may conduct war-rantless searches and seizures of garbage discarded in public areas. See Commonwealth v. Chappee, 397 Mass. 508, 512-513, 492 N. E. 2d 719, 721-722 (1986); Cooks v. State, 699 P. 2d 653, 656 (Okla. Crim.), cert, denied, 474 U. S. 935 (1985); State v. Stevens, 123 Wis. 2d 303, 314-317, 367 N. W. 2d 788, 794-797, cert. denied, 474 U. S. 852 (1985); State v. Ronngren, 361 N. W. 2d 224, 228-230 (N. D. 1985); State v. Brown, 20 Ohio App. 3d 36, 37-38, 484 N. E. 2d 215, 217-218 (1984); State v. Oquist, 327 N. W. 2d 587 (Minn. 1982); People v. Whotte, 113 Mich. App. 12, 317 N. W. 2d 266 (1982); Commonwealth v. Minton, 288 Pa. Super. 381, 391, 432 A. 2d 212, 217 (1981); State v. Schultz, 388 So. 2d 1326 (Fla. App. 1980); People v. Huddleston, 38 Ill. App. 3d 277, 347 N. E. 2d 76 (1976); Willis v. State, 518 S. W. 2d 247, 249 (Tex. Crim. App. 1975); Smith v. State, 510 P. 2d 793 (Alaska), cert. denied, 414 U. S. 1086 (1973); State v. Fassler, 108 Ariz. 586, 592-593, 503 P. 2d 807," }, { "docid": "22316206", "title": "", "text": "one-year durational residency requirement. When this requirement was held invalid by the Alaska Supreme Court, their controversy with the appellees seems to have terminated. Although this Court has not always equated state residency with state citizenship, compare Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 78-79 (1920), and Blake v. McClung, 172 U. S. 239, 246-247 (1898), with Southern R. Co. v. Mayfield, 340 U. S. 1, 3-4 (1950); Douglas v. New Haven R. Co., 279 U. S. 377, 386-387 (1929); and La Tourette v. McMaster, 248 U. S. 465, 469-470 (1919), it is now established that the terms “citizen” and “resident” are “essentially interchangeable,” Austin v. New Hampshire, 420 U. S. 656, 662 n. 8 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause of Art. IV, § 2. See Toomer v. Witsell, 334 U. S. 385, 397 (1948). Cf. Edwards v. California, 314 U. S. 160 (1941). For example, a report quoted in the State’s Memorandum in Opposition to Plaintiffs’ Motion for Partial Preliminary Injunction and Second Motion for Preliminary Injunction, Record 58, observed: “The skill levels of in-migrants and seasonal workers are generally higher than those of the unemployed or under-employed resident workers. Their ability to command jobs in Alaska is a sympton of, rather than the cause of conditions resulting in high unemployment rates, particularly among Alaska Natives. Those who need the jobs the most tend to be undereducated, untrained, or living in areas of the state remote from job opportunities. Unless unemployed residents — most of whom are Eskimos and Indians' — have access to job markets and receive the education and training required to fit them into Alaska’s increasingly technological economy and unless there is a restructuring of labor demands, new jobs will continue to be filled by persons from other states who have the necessary qualifications.” Federal Field Committee for Development Planning in Alaska, Economic Outlook for Alaska 311-312 (1971) (emphasis added; footnote omitted). At the time Alaska was admitted into the Union on January 3, 1959, 99% of all land within Alaska’s borders was" }, { "docid": "22279914", "title": "", "text": "S. 465, 469-470 (1919), it is now established that the terms “citizen” and “resident” are “essentially interchangeable,” Austin v. New Hampshire, 420 U. S. 656, 662, n. 8 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause. See Hicklin v. Orbeck, supra, at 524, n. 8; Toomer v. Witsell, supra, at 397. A person who is not residing in a given State is ipso facto not residing in a city within that State. Thus, whether the exercise of a privilege is conditioned on state residency or on municipal residency he will just as surely be excluded. Given the Camden ordinance, an out-of-state citizen who ventures into New Jersey will not enjoy the same privileges as the New Jersey citizen residing in Camden. It is true that New Jersey citizens not residing in Camden will be affected by the ordinance as well as out-of-state citizens. And it is true that the disadvantaged New Jersey residents have no claim under the Privileges and Immunities Clause. Slaughter-House Cases, 16 Wall. 36, 77 (1873). But New Jersey residents at least have a chance to remedy at the polls any discrimination against them. Out-of-state citizens have no similar opportunity, Austin v. New Hampshire, supra, at 662, and they must not “be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation.” Toomer v. Witsell, supra, at 395. We conclude that Cam den’s ordinance is not immune from constitutional review at the behest of out-of-state residents merely because some instate residents are similarly disadvantaged. Cf. Zobel v. Williams, 457 U. S. 55, 75 (1982) (O’Connor, J., concurring in judgment). Application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a two-step inquiry. As an initial matter, the Court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause. Baldwin v. Montana Fish and Game Comm’n, 436 U. S. 371, 383 (1978). Not all forms of discrimination against citizens of other States are constitutionally suspect. “Some distinctions between residents and nonresidents merely reflect the fact that this" }, { "docid": "22862766", "title": "", "text": "Rules 1-8 (1997); Nev. Sup. Ct. Rule 217 (1998); Petition of New Hampshire Bar Assn., 122 N. H. 971, 453 A. 2d 1258 (1982); N. J. Rules Gen. Application 128A-2 (1998); N. M. Rule Prof Conduct 16-115(D) (1998); N.Y. Jud. Law §497 (McKinney Supp. 1997 and 1998); N. C. Rule Prof Conduct 1.15-3 (1997); N. D. Rule Prof Conduct 1.15(d)(1) (1997); OMo Rev. Code Ann. § 4705.09(A)(1) (1997); OWa. Rule Pro£ Conduct 1.15(d) (1997); Ore. Code Pro£ Responsibility DR 9-101(D)(2) (1997); Pa. Rule Pro£ Conduct 1.15(d) (1997) and Pa. Rule Disciplinary Enforcement 601(d) (1997); R. I. Rule Prof. Conduct 1.15(d) (1997); S. C. App. Ct. Rule 412 (1988); S. D. Rule Prof Conduct 1.15(d)(4) (1995); Tenn. Code Prof. Responsibility DR 9-102(C)(2) (1997); In re Interest on Lawyers’ Trust Accounts, 672 P. 2d 406 (Utah 1983); Va. Sup. Ct. Rules, Pt. 6, §4, ¶20 (1997); Vt. Code Prof Responsibility DR 9-103 (1996); Wash. Rule Pro£ Conduct 1.14(c)(1) (1997); W. Va. Rule Prof Conduct 1.15(d) (1997); Wis. Sup. Ct. Rules 13.04, 20:1.15 (1997); Wyo. Rule Prof Conduct 1.15(11) (1997). Indiana is the only State that has not implemented an IOLTA program. See In re Indiana State Bar Assn. Petition, 550 N. E. 2d 311 (Ind. 1990). We express no opinion as to the reasonableness of this interpretation of § 1832(a). See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). Cone v. State Bar of Fla., 819 F. 2d 1002 (CA11), cert. denied, 484 U. S. 917 (1987); In re Interest on Lawyers’ Trust Accounts, 672 P. 2d 406 (Utah 1983); Petition of New Hampshire Bar Assn., 122 N. H., at 975-976, 453 A. 2d, at 1260-1261; In re Minnesota State Bar Assn., 332 N. W. 2d 151, 158 (Minn. 1982); In re Interest on Trust Accounts, 402 So. 2d 389, 395-396 (Fla. 1981). We granted certiorari in this case to answer the question whether “interest earned on client trust funds held by lawyers in IOLTA accounts [is] a property interest of the client or lawyer, cognizable under the . . . Fifth Amendmen[t]" }, { "docid": "22144412", "title": "", "text": "oath of office ... is administered.” Affidavit of John W. King, App. 32. Accordingly, the parties agree that the refusal to admit Piper to the bar was based on Rule 42. Piper was not excluded totally from the practice of law in New Hampshire. Out-of-state lawyers may appear pro hac vice in state court. This alternative, however, does not allow the nonresident to practice in New Hampshire on the same terms as a resident member of the bar. The lawyer appearing pro hac vice must be associated with a local lawyer who is present for trial or argument. See N. H. Sup. Ct. Rule 33(1); N. H. Super. Ct. Rule 19. Furthermore, the decision on whether to grant pro hac vice status to an out-of-state lawyer is purely discretionary. See Leis v. Flynt, 439 U. S. 438, 442 (1979) (per curiam). The District Court did not consider Piper’s claims that Rule 42: (i) deprived her of property without due process of law, in violation of the Fourteenth Amendment; (ii) denied her equal protection of the law, in violation of the Fourteenth Amendment; and (iii) placed an undue burden upon interstate commerce, in violation of Art. I, § 8, of the United States Constitution. The Court of Appeals did not address these claims, and our resolution of this case makes it unnecessary for us to reach them. The panel, with one judge dissenting, had reversed the District Court’s judgment. 723 F. 2d 98 (1983). The prevailing judges thought it significant that three State Supreme Courts had invalidated their own bar residency requirements. Sargus v. West Virginia Board of Law Examiners,-W. Va.-, 294 S. E. 2d 440 (1982); Noll v. Alaska Bar Assn., 649 P. 2d 241 (Alaska 1982); Gordon v. Committee on Character and Fitness, 48 N. Y. 2d 266, 397 N. E. 2d 1309 (1979). Since the Court of Appeals decision in this case, another State Supreme Court has reached the same conclusion. In re Jadd, 391 Mass. 227, 461 N. E. 2d 760 (1984). Under this Clause, the terms “citizen” and “resident” are used interchangeably. See Austin v. New" } ]

[ { "docid": "1392627", "title": "", "text": "jury the basis for the IRS’s conclusion that deductions claimed by Mi-kutowicz and his companies were improper. Mikutowicz challenges the admission of Pleshaw’s testimony concerning “the non-deductibility of AGM’s payments to Ellis Engineering.” We review the admis sion of Pleshaw’s testimony for an abuse of discretion. See United States v. Santana, 342 F.3d 60, 68 (1st Cir.2003), cert. denied, — U.S. -, 124 S.Ct. 1478, 158 L.Ed.2d 129, 2004 WL 323919 (U.S. Feb. 23, 2004). Pleshaw provided the jury with a summary of why the IRS determined that the deductions claimed by Mikutowicz and his companies were improper. It is well established in several circuits that “[expert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence.” United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986); see United States v. Sabino, 274 F.3d 1053, 1067 (6th Cir.2001), amended on other grounds, 307 F.3d 446 (2002); United States v. Monus, 128 F.3d 376, 386 (6th Cir.1997); United States v. Townsend, 31 F.3d 262, 270 (5th Cir.1994); United States v. Toushin, 899 F.2d 617, 620 n. 4 (7th Cir.1990); United States v. Gold, 743 F.2d 800, 817 (11th Cir.1984); United States v. Fogg, 652 F.2d 551, 557 (5th Cir.1981). The primary limitation on this type of evidence is that the agent may not testify about the defendant’s state of mind when the challenged deductions were claimed. See Fed.R.Evid. 704(b) (expert may not testify to mental state of defendant where mental state is element of charged offense); Sabino, 274 F.3d at 1067 (“[I]n a tax case, the summary witness is allowed to summarize and analyze the facts indicating willful tax evasion so long as the witness does not directly embrace the ultimate question of whether the defendant did in fact intend to evade income taxes.”) (internal quotations and citations omitted); Windfelder, 790 F.2d at 582 (stating that it was error, in tax fraud case, to admit IRS agent’s testimony that defendant “intentionally understated his income” because this testimony “impermissibly state[d] an opinion as to the defendant’s knowledge or willfulness, a mental" } ]

[ { "docid": "18747919", "title": "", "text": "Mr. Gardiner, Mr. Windfelder and [defendant’s counsel], I believe, was that these amounts were payments out of the estate for the benefit of Lauretta Windfelder. TR. 961. The defendant asserts that this testimony was inadmissible because it concerned the intentions of the defendant and Lauretta Windfelder, and the experts did not have expertise “in the area of human intention.” The defendant also asserts that these opinions were not helpful to the jury in resolving the issue of whether the defendant misappropriated Lauretta Windfelder’s assets because the jury could adequately decide this issue based on the documents alone. The defendant did not mention Rule 704(b) in his brief or at oral argument, and the record does not indicate that Rule 704(b) played any part in the defendant’s objections at trial or the trial judge’s rulings upon the evidence. We first note that none of the testimony recounted above expressed an opinion or conclusion as to the defendant’s willfulness or knowledge in preparing or filing the false tax returns, but related only to whether the transfers of assets in question were authorized by Lauretta Windfelder for her expenses, were gifts to the defendant, or were utilized by the defendant without authorization and the resulting tax consequences. Expert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence. See United States v. Gold, 743 F.2d 800, 817 (11th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). Similarly, we find that an IRS expert’s analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is also admissible evidence. To the extent that this testimony reflected the intent of Lauretta Windfelder, we do not believe that these witnesses needed to have been qualified as experts in psychiatry or philosophy before rendering the conclusions to which the defendant objects because these conclusions were limited to whether the documents in evidence indicated that Lauretta Windfelder had authorized the transfer of her assets to defendant or whether, in view of these documents, the defendant transferred her" }, { "docid": "16406394", "title": "", "text": "dissenting) (“A summary witness need not necessarily be an expert, but experts in- accounting and other disciplines regularly give summary evidence of the sort envisioned by Federal Rule of Evidence 1006.” (citing 5 D. Louis'ell & C. Mueller, Federal Evi dence § 599, at 540 (1981))), mandate recalled and amended by 957 F.2d 301 (7th Cir.1992). “As a summary witness, an IRS agent may testify as to the agent’s analysis of the transaction which may necessarily stem from the testimony of other witnesses. The agent may also explain his analysis of the facts based on his special expertise.” Moore, 997 F.2d at 58. As an expert witness, an IRS agent’s “opinion as to the proper tax consequences of a transaction is admissible evidence.” United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986). “Similarly, ... an IRS expert’s analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is also admissible evidence.” Id. Here, Agent Welch analyzed the stock sales and described the income tax consequences. Although he was not proffered as an expert witness, his qualifications were in evidence. Those qualifications included eighteen years of service with the IRS as a revenue agent, a bachelor’s degree in accounting and a master’s degree in taxation. While employed by the IRS, he completed additional classes in taxation, specialized training and continuing professional education. At the time of trial, he had conducted approximately two hundred tax audits and had reviewed several thousand audits of other revenue agents. Agent Welch was therefore qualified to express “an opinion as to the proper tax consequences of a transaction” and of the “transaction itself, which necessarily precedes his ... evaluation of the tax consequences.” Id. at 581. Ms. Pree further contends that Agent Welch’s testimony was inadmissible to the extent that he stepped into the role of an expert because he failed to use a recognized means of valuation of restricted stock. Agent Welch testified that the stock had no fair market value by virtue of the restriction because it could not be sold in a brokerage house. Admittedly, Agent" }, { "docid": "18747922", "title": "", "text": "an area beyond the full understanding of the average person, and we therefore find that the district court did not abuse its discretion in ruling that their informed conclusions as to the meaning of that evidence may also have been helpful to the jury in interpreting that evidence. See United States v. McCoy, 539 F.2d 1050, 1062 (5th Cir.1976) (expert drew conclusions as to meaning of conversation with defendant based on expert’s knowledge of bookmaking business); McCormick, Evidence § 13 (2d Ed.1972) (expert may draw inferences from the facts). The defendant also objected to testimony by Agent Gardiner that the defendant “intentionally understated his income” in his 1978 income tax return, TR. 843, and to the following testimony, also by Agent Gardiner: [I]t was my opinion, at the time [the defendant] signed his tax return, he was well aware of what happened to [Lauretta Windfelder’s] assets prior to her dying, and he continued to or attempted to purport something other than what really happened with these assets during the meeting with [IRS Agent] Beighton. TR. 858-59. We disagree with the defendant’s arguments that this testimony was inadmissible for the same reasons that we found the trial judge did not abuse his discretion in admitting the opinion testimony about Lauretta Windfelder’s intent. See Torres v. County of Oakland, 758 F.2d 147, 150-51 (6th Cir.1985) (questions calling for opinion testimony as to intent proper); United States v. Bishop, 534 F.2d 214, 221 (10th Cir.1976) (prior to enactment of Rule 704(b), expert opinion testimony as to defendant’s guilty knowledge or intent not per se inadmissible). Under Rule 704(b), however, it was error to admit the testimony that the defendant intentionally understated his income and that “he was well aware of what happened” to Lauretta Windfelder’s assets. These statements impermissibly state an opinion as to the defendant’s knowledge or willfulness, a mental state which constitutes an element of the crimes charged. As stated above, the defendant did not raise a Rule 704(b) argument at trial and thus has waived this argument on appeal. United States v. Sentovich, 677 F.2d 834, 837 (7th Cir.1982) (citations" }, { "docid": "953006", "title": "", "text": "the eases that plaintiffs cite are criminal prosecutions where the trial court allowed a prosecution witness—often a government agent—to testify as to how the defendant violated certain regulations. The trial courts in these cases did not allow de fendant to offer expert testimony to rebut prosecution witnesses, thereby raising concerns of equal treatment. See United States v. Riddle, 103 F.3d 423, 430 (5th Cir.1997) (ruling abuse of discretion in trial court’s disallowing defense witness from testifying as to whether certain conduct violated regulations, but allowing prosecution witness to do so); United States v. Van Dyke, 14 F.3d 415, 422 (8th Cir.1994) (same). The appellate courts reversed the trial courts both in the interest of treating the parties equally, especially in a criminal prosecution, and in the interest of allowing expert testimony that would not have improperly invaded the province of the court. Although the explication that the experts would offer in those trials necessarily required a discussion of the relevant regulations, they did not present a comparably exhaustive legal analysis of case law, statute, regulation, or IRS documents that Professor Shephard or Mr. Smith propose to offer. Other cases upon which plaintiffs rely similarly do not support admission of the particular legal opinions that plaintiffs proffer. In United States v. Mikutowicz, 365 F.3d 65, 72 (1st Cir.2004), an IRS agent described in his testimony the IRS’s audit of the defendant and the results of the audit, along with the rationale that led the IRS to reach its conclusions. The court observed, however, that the agent “offered no testimony concerning [defendant’s] state of mind when claiming the challenged deductions,” which was the legal standard to assess the taxpayer’s conduct. Id. In United States v. Toushin, 899 F.2d 617, 620 & n. 4 (7th Cir.1990), an IRS agent testified about the tax consequences of money kept in a safe. The court ruled that this testimony was not an “improper legal opinion” because it did not address a question of law. Id. Instead, it helped the trier of fact understand how the IRS itself analyzed the transaction, “which necessarily precedes [its] evaluation of" }, { "docid": "23661412", "title": "", "text": "she testified that Benson worked for her, or that Rhodes was telling the truth when he denied any secret settlement existed between Benson and Underwriters. Cantzler did not give helpful ex pert testimony that cast another witness’ testimony in a good or bad light; instead, he simply told the jury whom to believe. The government relies on our decision in United States v. Windfelder, 790 F.2d 576 (7th Cir.1986), to support the admission of Cantzler’s testimony. In Windfelder we held as a general matter that “[ejxpert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence. Similarly ... an IRS expert’s analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is also admissible.” Id. at 581. The government contends that Cantzler’s testimony was admissible because it was simply his analysis of the transactions that produced taxable income to Benson. The government reads too much into Windfelder. An IRS agent may be allowed to testify as an expert about his analysis of a transaction, but only if his testimony qualifies as expert testimony. That testimony must still involve the application of some special skill or knowledge that will help the jury understand the case. In Windfelder, the IRS experts’ opinions “were based on their evaluation of evidence (the tax returns and related financial documents) that was within the area of their special expertise.” Id. at 581-82. The experts in Windfelder used their “expertise in accounting and tax matters” in reaching their conclusions. Id. at 581. That is not the case with much of Cantzler’s testimony. For example, it takes no particular expertise in tax or accounting matters to conclude from invoices and bills that on their face say “investigator fees” that they probably are for investigator fees. And Cantzler’s opinion that Benson was not entitled to Social Security benefits required no application of any tax or accounting expertise. There was no complex transaction that had to be broken down so the jury could understand it, no tax law concept or accounting principle to" }, { "docid": "2190479", "title": "", "text": "F.3d 1147, 1171 (10th Cir.2005) (internal quotation marks omitted). Rule 704(a) of the Federal Rules of Evidence “allows an expert witness to testify in the form of an opinion or inference even if that opinion or inference embraces an ultimate issue to be determined by the trier of fact.” A.E. ex rel Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir.1991). An “expert may not state legal conclusions drawn by applying the law to the facts,” but “[a]n expert may ... refer to the law in expressing his or her opinion.” Id.; see also United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943) (allowing some discretion to trial judges in determining whether expert testimony appropriately leaves the jury free to exercise its judgment). Our sister circuits have held that “[e]xpert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence,” United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986), so long as the expert does not “directly embrace the ultimate question of whether [the defendants] did in fact intend to evade income taxes,” United States v. Sabino, 274 F.3d 1053, 1067 (6th Cir.2001) (alteration in original) (internal quotation marks omitted). As we stated in a recent unpublished opinion, “we agree that a properly qualified IRS agent may analyze a transaction and give expert testimony about its tax consequences.” United States v. Wade, 203 Fed.Appx. 920, 930 (10th Cir.2006). Based on this authority, we conclude the district court did not abuse its discretion in admitting the agent’s testimony. Conclusion We see no error in any of the district court’s rulings. We therefore AFFIRM Defendant’s conviction and sentence. . If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than" }, { "docid": "23661452", "title": "", "text": "payments from Underwriters really on account of a settlement? We leave it to the parties and court at any retrial to determine the propriety of an advice of counsel instruction, based on the evidence at that trial. KANNE, Circuit Judge, dissenting. In typical fashion for a tax case, the government called an expert to summarize the complex evidence it had presented in its case in chief. “The nature of a summary witness’ testimony requires that he draw conclusions from the evidence presented at trial.” United States v. Esser, 520 F.2d 213, 218 (7th Cir.1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3166, 49 L.Ed.2d 1184 (1976). A summary witness need not necessarily be an expert, but experts in ae-counting and other disciplines regularly give summary evidence of the sort envisioned by Federal Rule of Evidence 1006. 5 D. Louisell & C. Mueller, Federal Evidence § 599, at 540 (1981). See, e.g., United States v. Kapnison, 743 F.2d 1450, 1557-58 (10th Cir.1984) (under Rule 1006, IRS agent allowed to give testimony summarizing exhibits and testimony), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985); United States v. Lemire, 720 F.2d 1327, 1346-50 (D.C.Cir.1983) (under Rule 1006, FBI agent who was Certified Public Accountant allowed to summarize bank transactions and testimony of witnesses), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984). In a case strikingly similar to the present one, we held that “[ejxpert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence.” United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986). We also noted that “an IRS expert’s analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is also admissible evidence.” Id. With regard to the expert testimony admitted by a district judge, we are required to sustain his decision unless it was manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). The key transaction in this case concerns whether or not the" }, { "docid": "17279349", "title": "", "text": "concerns the defendant’s mental state or condition. A witness, however, may not give a direct opinion on the defendant’s guilt or innocence. Espinosa, 827 F.2d at 612. See also Fleishman, 684 F.2d at 1335-1336. In Espinosa, we upheld the trial court’s admission of expert testimony by a law enforcement officer where the officer testified that the defendant was using an apartment as a “stash pad” for money and narcotics, ledgers found in the apartment contained the names of the defendant’s cocaine buyers, and an exchange of packages on a certain date was an exchange of narcotics for money. Espinosa, 827 F.2d at 611. Similarly, in United States v. Stewart, 770 F.2d 825, 831 (9th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 888, 88 L.Ed.2d 922 (1986), we upheld the admission of a Drug Enforcement Agency (“DEA”) agent’s expert testimony that the defendant’s driving behavior indicated he was attempting to avoid surveillance and that, on another occasion, he was probably delivering drugs to customers. See also Andersson, 813 F.2d at 1458 (court upheld admission of expert testimony that defendants engaged in “counter-surveillance techniques”). In Fleishman, 684 F.2d at 1335-1336, we held that the trial court properly allowed an officer to testify that the defendant’s actions showed he was acting as a lookout in a drug trafficking conspiracy case. Although defendant argued this testimony was tantamount to the officer testifying defendant was guilty, we distinguished opinions regarding a defendant’s guilt or innocence from expert testimony regarding the various roles which an individual may play in illegal enterprises. We concluded that the expert testimony of the officer was relevant and its probative value outweighed any prejudice the testimony would have as an opinion on an ultimate issue. Joseph Kinsey inappropriately relies on United States v. Windfelder, 790 F.2d 576, 582 (7th Cir.1986). There the Seventh Circuit held that an Internal Revenue Service agent’s testimony that defendant “intentionally understated his income” in his income tax return and that “he was well aware of what happened to [his aunt’s] assets prior to her dying” impermissibly stated an opinion as to the defendant’s knowledge or" }, { "docid": "2390365", "title": "", "text": "United States v. Hogan, 886 F.2d 1497, 1509 (7th Cir.1989); see also Holland v. United States, 348 U.S. 121, 129, 75 S.Ct. 127, 132, 99 L.Ed. 150 (1954) (care must be exercised when proving unreported income through indirect means). . The district court struck this latter statement as hearsay. Tr. 1222-23. . This figure represented the $200,000 that Mr. Toushin allegedly told his wife was in the safe, minus $25,000 that was used prior to 1980 as a downpayment on a condominium. The Eleventh Circuit has expressed an unwillingness to allow defense calculations of starting income to be based on hearsay. United States v. Scrima, 819 F.2d 996, 1001 (11th Cir.1987). Since the parties did not argue this issue on appeal, we shall express no opinion at this time. .Mr. Toushin argued that this testimony represented an improper legal opinion by Agent Czu-rylo that should have been barred under Federal Rule of Evidence 704. We disagree. We have examined this general issue in United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986), in which we approved the allowance of similar testimony by an IRS agent. The agent gave his opinion regarding the propriety of fund transfers and whether the IRS would accept such transfers as taxable. We stated that \"[e]xpert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence. Similarly, we find that an IRS expert's analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is also admissible evidence.” Id. (citation omitted). Moreover, Agent Czurylo’s opinion is proper as an explanation of the assumptions that underlie his calculation of the opening balance for the cash method of calculating unreported income. . “[T]he other reason that you know that — that the money that she saw in the safe, that that is not essentially cash, undeposited cash that belonged to Mr. Toushin, is because the Judge will tell you that a diversion of corporate funds occurs at the time that a person who has controlling interest in the corporation uses or" }, { "docid": "23661454", "title": "", "text": "payments received by Benson from the insurance company and Social Security Administration were fraudulently obtained— thus making such payments taxable income. In light of the language in Windfelder, 790 F.2d at 581 and United States v. Toushin, 899 F.2d 617, 620 n. 4 (7th Cir.1990), I do not believe that permitting the government’s expert witness to testify concerning his analysis of the transaction (pay ment of insurance and Social Security benefits), which necessarily preceded his evaluation of the tax consequences could be deemed manifestly erroneous. It is certainly arguable that an IRS agent could qualify as an expert by knowledge, skill, experience, and training to give an opinion on the existence of fraud for the purpose of determining taxable income. The wide discretion afforded the district judge should enable him to determine whether the transaction analyzed by the IRS agent fell within the purview of his expertise. Even if a finding of manifest error could be made with regard to the admission of the expert’s summary testimony, I disagree with the majority’s rejection of the application of the harmless error doctrine. The district judge initially made a determination that any error he may have made in admitting the agent’s testimony was harmless. In determining whether the district judge committed manifest error, we must necessarily address this harmless error determination, as it was incorporated into the decision to allow the testimony to remain in evidence. For the foregoing reasons, I respectfully dissent from the reversal of the conviction." }, { "docid": "23661413", "title": "", "text": "about his analysis of a transaction, but only if his testimony qualifies as expert testimony. That testimony must still involve the application of some special skill or knowledge that will help the jury understand the case. In Windfelder, the IRS experts’ opinions “were based on their evaluation of evidence (the tax returns and related financial documents) that was within the area of their special expertise.” Id. at 581-82. The experts in Windfelder used their “expertise in accounting and tax matters” in reaching their conclusions. Id. at 581. That is not the case with much of Cantzler’s testimony. For example, it takes no particular expertise in tax or accounting matters to conclude from invoices and bills that on their face say “investigator fees” that they probably are for investigator fees. And Cantzler’s opinion that Benson was not entitled to Social Security benefits required no application of any tax or accounting expertise. There was no complex transaction that had to be broken down so the jury could understand it, no tax law concept or accounting principle to explain. The jury was every bit as qualified to analyze the evidence concerning Benson’s receipt of Social Security benefits as was Cantzler, and Cantzler had nothing to offer on this question that would assist the jury’s understanding of the issue. We conclude that it was an abuse of discretion to admit much of Cantzler’s testimony. But, does that error require reversal? The trial judge concluded after hearing all of Cantzler’s testimony and reflecting on it that he had made a mistake by admitting it. But the judge characterized that mistake as “probably a harmless mistake.” Benson’s attorney conducted a thorough cross-examination of Cantzler, exposing his lack of qualification to opine on many of the matters he did. The judge instructed the jury that it was free to accept or reject Cantzler’s testimony. As one commentator has noted in discussing the issue of whether to admit expert testimony, generally “[t]he jury is intelligent enough, aided by counsel, to ignore what is unhelpful in deliberations.” 3 Weinstein’s Evidence ¶ 702[02], at 702-30. The government, however, has placed" }, { "docid": "16406393", "title": "", "text": "available for full cross-examination). Ms. Pree contends, however, that Agent Welch exceeded his role as a summary witness and provided inadmissible expert testimony in the guise of a summary witness. We believe Agent Welch primarily testified within his role as a summary witness. However, we acknowledge that, in such a case as the present, where an IRS Revenue Agent summarizes the evidence for purposes of establishing the tax consequences, the line between summary testimony and expert testimony is indistinct. Given the assistance such an individual can provide to the jury, it has not been unusual in previous cases for an IRS agent to testify as an “expert summary witness.” See United States v. Moore, 997 F.2d 55, 58 (5th Cir. 1993); United States v. Mohney, 949 F.2d 1397, 1406 (6th Cir.1991); United States v. Bosch, 914 F.2d 1239, 1242 (9th Cir.1990); United States v. Dotson, 817 F.2d 1127, 1132 (5th Cir.1987), vacated in part on reh’g., 821 F.2d 1034 (5th Cir.1987); see also United States v. Benson, 941 F.2d 598, 615 (7th Cir.1991) (Kanne, J., dissenting) (“A summary witness need not necessarily be an expert, but experts in- accounting and other disciplines regularly give summary evidence of the sort envisioned by Federal Rule of Evidence 1006.” (citing 5 D. Louis'ell & C. Mueller, Federal Evi dence § 599, at 540 (1981))), mandate recalled and amended by 957 F.2d 301 (7th Cir.1992). “As a summary witness, an IRS agent may testify as to the agent’s analysis of the transaction which may necessarily stem from the testimony of other witnesses. The agent may also explain his analysis of the facts based on his special expertise.” Moore, 997 F.2d at 58. As an expert witness, an IRS agent’s “opinion as to the proper tax consequences of a transaction is admissible evidence.” United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986). “Similarly, ... an IRS expert’s analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is also admissible evidence.” Id. Here, Agent Welch analyzed the stock sales and described the income tax consequences. Although he was" }, { "docid": "18747921", "title": "", "text": "assets into his accounts on his own. See Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 449 (7th Cir.1984) (expert had reasonable factual basis for his conclusions). The experts utilized their expertise in accounting and tax matters in making these determinations, not their knowledge of the workings of the human mind. Moreover, these opinions are not precluded by Rule 704(b) because Lauretta Windfelder is not a defendant in this case and her intent is not an element of the crimes charged. We therefore find that the trial court did not abuse its discretion in admitting this testimony into evidence because the IRS experts had a sufficient foundation for their testimony. See Kelsay, 749 F.2d at 449. Similarly, we disagree with defendant’s position that this testimony was not helpful to the jury because we find that the IRS experts’ conclusions were based on their evaluation of evidence (the tax returns and related financial documents) that was within the area of their special expertise. The defendant does not contest that the basis for the experts’ opinions involved an area beyond the full understanding of the average person, and we therefore find that the district court did not abuse its discretion in ruling that their informed conclusions as to the meaning of that evidence may also have been helpful to the jury in interpreting that evidence. See United States v. McCoy, 539 F.2d 1050, 1062 (5th Cir.1976) (expert drew conclusions as to meaning of conversation with defendant based on expert’s knowledge of bookmaking business); McCormick, Evidence § 13 (2d Ed.1972) (expert may draw inferences from the facts). The defendant also objected to testimony by Agent Gardiner that the defendant “intentionally understated his income” in his 1978 income tax return, TR. 843, and to the following testimony, also by Agent Gardiner: [I]t was my opinion, at the time [the defendant] signed his tax return, he was well aware of what happened to [Lauretta Windfelder’s] assets prior to her dying, and he continued to or attempted to purport something other than what really happened with these assets during the meeting with [IRS Agent] Beighton. TR." }, { "docid": "16406397", "title": "", "text": "do not perceive plain error. The conclusion that Ms. Pree’s basis in the stock should be treated as zero was supported by sufficient evidence. Moreover, Ms. Pree’s counsel had an opportunity to cross-examine Agent Welch as to his conclusions regarding the value of the stock. See United States v. Gonzalez, 933 F.2d 417, 429 (7th Cir.1991) (indicating that “any questions or problems concerning the expert’s opinion and testimony may be thoroughly explored during the cross-examination of the expert witness”). Ms. Pree also challenges Agent Welch’s testimony as outside his area of expertise and improperly selective. We find no error on these grounds. First, Agent Welch’s testimony did not fall outside his area of expertise in violation of our holding in Benson. In Benson, we held that an IRS agent’s opinion as to whether the defendant was entitled to social security benefits was outside the agent’s area of expertise and thus not admissible as expert testimony. See id. at 605. Unlike the. testimony at issue in Benson, Agent Welch’s testimony dealt directly with the tax consequences of Ms. Pree’s stock sale transactions and the necessary underlying analysis of those transactions. See Windfelder, 790 F.2d at 581. Second, Agent Welch did not make impermissible credibility determinations on the issue of whether Ms. Pree received the stock as a gift or as compensation. Rather, Agent Welch permissibly relied upon the Government’s abundant evidence that Ms. Pree received her stock as compensation. See Moore, 997 F.2d at 58 (“Perhaps, his testimony was selective but that is why cross examination is allowed.”). Moreover, “[i]f a witness’ expertise would be helpful to the jury, ... and the facts which he recounts fall within his area of expertise, then there is nothing improper about a selective summary.” Id. (internal citation omitted). Agent Welch possessed specialized knowledge of the tax consequences at issue and the evidence necessary to prove the indictment. The facts he recounted fell within his area of expertise. Thus, there was nothing improper as to his selective summary of the Government’s evidence. It is true that, at one point, Agent Welch mistakenly testified that the" }, { "docid": "23661453", "title": "", "text": "denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985); United States v. Lemire, 720 F.2d 1327, 1346-50 (D.C.Cir.1983) (under Rule 1006, FBI agent who was Certified Public Accountant allowed to summarize bank transactions and testimony of witnesses), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984). In a case strikingly similar to the present one, we held that “[ejxpert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence.” United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986). We also noted that “an IRS expert’s analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is also admissible evidence.” Id. With regard to the expert testimony admitted by a district judge, we are required to sustain his decision unless it was manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962). The key transaction in this case concerns whether or not the payments received by Benson from the insurance company and Social Security Administration were fraudulently obtained— thus making such payments taxable income. In light of the language in Windfelder, 790 F.2d at 581 and United States v. Toushin, 899 F.2d 617, 620 n. 4 (7th Cir.1990), I do not believe that permitting the government’s expert witness to testify concerning his analysis of the transaction (pay ment of insurance and Social Security benefits), which necessarily preceded his evaluation of the tax consequences could be deemed manifestly erroneous. It is certainly arguable that an IRS agent could qualify as an expert by knowledge, skill, experience, and training to give an opinion on the existence of fraud for the purpose of determining taxable income. The wide discretion afforded the district judge should enable him to determine whether the transaction analyzed by the IRS agent fell within the purview of his expertise. Even if a finding of manifest error could be made with regard to the admission of the expert’s summary testimony, I disagree with the majority’s rejection of the" }, { "docid": "953007", "title": "", "text": "or IRS documents that Professor Shephard or Mr. Smith propose to offer. Other cases upon which plaintiffs rely similarly do not support admission of the particular legal opinions that plaintiffs proffer. In United States v. Mikutowicz, 365 F.3d 65, 72 (1st Cir.2004), an IRS agent described in his testimony the IRS’s audit of the defendant and the results of the audit, along with the rationale that led the IRS to reach its conclusions. The court observed, however, that the agent “offered no testimony concerning [defendant’s] state of mind when claiming the challenged deductions,” which was the legal standard to assess the taxpayer’s conduct. Id. In United States v. Toushin, 899 F.2d 617, 620 & n. 4 (7th Cir.1990), an IRS agent testified about the tax consequences of money kept in a safe. The court ruled that this testimony was not an “improper legal opinion” because it did not address a question of law. Id. Instead, it helped the trier of fact understand how the IRS itself analyzed the transaction, “which necessarily precedes [its] evaluation of the tax consequences.” Id. Plaintiffs contend that “[c]ourts have routinely held that ‘an expert should be permitted to testify to the substantive law applicable to the underlying proceeding, at least to the extent necessary to explain the expert’s conclusions that the defendant did or did not exercise the appropriate standard of care.’ ” Pls.’ Br. filed Mar. 19, 2008, at 7 (quoting Middle Mkt. Fin. Corp. v. D’Orazio, 2002 WL 31108260, at *8-9, 2002 U.S. Dist. LEXIS 17817, at *26 (S.D.N.Y. Sept. 23, 2002)). This proposition actually is not as receptive to an application of the facts to the law as plaintiffs would suggest, and their reliance on this particular case is puzzling. Middle Market concerned a legal malpractice action; a fuller quotation from that court’s opinion provides relevant context: I conclude that the foregoing authorities and logic dictate that in a legal malpractice action an expert should be permitted to testify to the substantive law applicable to the underlying proceeding, at least to the extent necessary to explain the expert’s conclusions that the defendant" }, { "docid": "23661411", "title": "", "text": "expert witness may not give testimony that, if accepted, will lead the jury to disbelieve a witness. Suppose, for example, that a defendant in a suit involving an automobile accident testifies that he was travelling 15-20 miles per hour when he entered an intersection and hit plaintiff’s car. An accident reconstruction expert testifies, however, that based on his analysis of the angle of deflection, damage to the two cars, his estimate of the point of impact, the two cars’ final resting positions, and other factors, that the defendant had to be travelling at least 40 miles per hour when he entered the intersection. That is useful expert testimony because it is based on specialized knowledge that is not within the average layman’s ken. If the jury accepted that testimony, it would necessarily disbelieve the defendant but that is no reason for refusing to admit the testimony. Cantzler’s testimony was different, though. He had no reason based on any special skill or knowledge he possessed for believing, for example, that Meinardi was telling the truth when she testified that Benson worked for her, or that Rhodes was telling the truth when he denied any secret settlement existed between Benson and Underwriters. Cantzler did not give helpful ex pert testimony that cast another witness’ testimony in a good or bad light; instead, he simply told the jury whom to believe. The government relies on our decision in United States v. Windfelder, 790 F.2d 576 (7th Cir.1986), to support the admission of Cantzler’s testimony. In Windfelder we held as a general matter that “[ejxpert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence. Similarly ... an IRS expert’s analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is also admissible.” Id. at 581. The government contends that Cantzler’s testimony was admissible because it was simply his analysis of the transactions that produced taxable income to Benson. The government reads too much into Windfelder. An IRS agent may be allowed to testify as an expert" }, { "docid": "1674855", "title": "", "text": "Fed.R.Evid. 704(a), “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” However, [t]he abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. Fed.R.Evid. 704, Advisory Committee’s Notes. The summary witnesses’ testimony did not deprive the jury of its function by telling it what result to reach. As this court explained in reference to the opinion of another IRS agent: Appellant’s argument that [the agent] usurped the function of the jury is also without merit. [The agent] did not give her opinion about whether appellant was guilty or not; she gave her opinion regarding whether tax was due and owing for the years in question in order to assist the jury in determining a fact in issue. There was no abuse of discretion. ... United States v. DeClue, 899 F.2d 1465, 1473 (6th Cir.1990). Moreover, even if an ultimate issue was involved, the district court did not abuse its discretion in finding that the testimony would be helpful to the jury in understanding the testimony of the expert witnesses because “an IRS expert’s analysis of the transaction itself, which necessarily precedes his or her evaluation of the tax consequences, is ... admissible evidence.” United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986). In order for the jury to understand the calculations and thus determine whether they accepted the analysis of the two witnesses, they needed to understand the assumptions upon which the testimony and calculations were based. D. Motion for Judgment of Acquittal After the guilty verdict, Mohney moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29 based on the insufficiency of the evidence. The district" }, { "docid": "17279350", "title": "", "text": "expert testimony that defendants engaged in “counter-surveillance techniques”). In Fleishman, 684 F.2d at 1335-1336, we held that the trial court properly allowed an officer to testify that the defendant’s actions showed he was acting as a lookout in a drug trafficking conspiracy case. Although defendant argued this testimony was tantamount to the officer testifying defendant was guilty, we distinguished opinions regarding a defendant’s guilt or innocence from expert testimony regarding the various roles which an individual may play in illegal enterprises. We concluded that the expert testimony of the officer was relevant and its probative value outweighed any prejudice the testimony would have as an opinion on an ultimate issue. Joseph Kinsey inappropriately relies on United States v. Windfelder, 790 F.2d 576, 582 (7th Cir.1986). There the Seventh Circuit held that an Internal Revenue Service agent’s testimony that defendant “intentionally understated his income” in his income tax return and that “he was well aware of what happened to [his aunt’s] assets prior to her dying” impermissibly stated an opinion as to the defendant’s knowledge or willfulness, a mental state which constituted an element of the crimes charged. Notwithstanding this conclusion, however, the court ultimately held that any error which occurred in the admission of the expert testimony was harmless in light of the overwhelming evidence that the defendant willfully evaded the payment of income taxes. We conclude that the probative value of Detective Torres' testimony strongly outweighs any prejudice which the admission thereof would have as an opinion on an ultimate issue. An ultimate issue opinion by a properly qualifed expert should not be excluded except in the extreme case where the expert’s opinion is inherently misleading or unfairly prejudicial. Rule 704(a)’s relaxation of the ultimate issue prohibition necessarily implies that the trial court must be vested with substantial discretion in its rulings as to the admissibility of ultimate issue testimony. The District Court did not abuse its discretion in the admission of Detective Torres’ opinion testimony. Moreover, the evidence of Joseph Kinsey’s guilt was so overwhelming and convincing that any error in the admission of Detective Torres’ testimony would" }, { "docid": "2190478", "title": "", "text": "982, 986 (10th Cir.1993). “[A] motion in limine may preserve an objection when the issue (1) is fairly presented to the district court, (2) is the type of issue that can be finally decided in a pretrial hearing, and (3) is ruled upon without equivocation by the trial judge.” Id. In this case, Defendant’s motion adequately informed the court of the basis for his objections, and the court’s ruling came after it received the Government’s detailed pretrial summary of the opinions it intended to elicit from Mr. Lynch. The issue raised in the motion could have been finally decided at a pretrial hearing, although it was in fact decided during the trial, outside the presence of the jury. And, the court’s decision to admit the testimony was final and unequivocal. Thus, we hold that Defendant’s motion preserved his objection for appellate review. We therefore review the district court’s decision to admit this expert testimony for an abuse of discretion, and we will reverse only if this decision was “manifestly erroneous.” United States v. Dazey, 403 F.3d 1147, 1171 (10th Cir.2005) (internal quotation marks omitted). Rule 704(a) of the Federal Rules of Evidence “allows an expert witness to testify in the form of an opinion or inference even if that opinion or inference embraces an ultimate issue to be determined by the trier of fact.” A.E. ex rel Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir.1991). An “expert may not state legal conclusions drawn by applying the law to the facts,” but “[a]n expert may ... refer to the law in expressing his or her opinion.” Id.; see also United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943) (allowing some discretion to trial judges in determining whether expert testimony appropriately leaves the jury free to exercise its judgment). Our sister circuits have held that “[e]xpert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence,” United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986), so long as the" } ]

[ { "docid": "22670196", "title": "", "text": "Opinion of the Court by MR. Justice Black, announced by Mr. Justice Douglas. Petitioner, Lulu B. McGee, recovered a judgment in a California state court against respondent, International Life Insurance Company, on a contract of insurance. Respondent was not served with process in California but by registered mail at its principal place of business in Texas. The California court based its jurisdiction on a state statute which subjects foreign corporations to suit in California on insurance contracts with residents of that State even though such corporations cannot be served with process within its borders. Unable to collect the judgment in California petitioner went to Texas where she filed suit on the judgment in a Texas court. But the Texas courts refused to enforce her judgment holding it was void under the Fourteenth Amendment because service of process outside California could not give the courts of that State jurisdiction over respondent. 288 S. W. 2d 579. Since the case raised important questions, not only to California but to other States which have similar laws, we granted certiorari. 352 U. S. 924. It is not controverted that if the California court properly exercised jurisdiction over respondent the Texas courts erred .in refusing to give its judgment full faith and credit. 28 U. S. C. § 1738. The material facts are relatively simple. In 1944, Lowell Franklin, a resident of California, purchased a life insurance policy from the Empire Mutual Insurance Company, an Arizona corporation. In 1948 the respondent agreed with Empire Mutual to assume its insurance obligations. Respondent then mailed a reinsurance certificate to Franklin in California offering to insure him in accordance with the terms of the policy he held with Empire Mutual. He accepted this offer and from that time until his death in 1950 paid premiums by mail from his California home to respondent’s Texas office. Petitioner, Franklin’s mother, was the beneficiary under the policy. She sent proofs of his death to the respondent but it refused to pay claiming that he had committed suicide. It appears that neither Empire Mutual nor respondent has ever had any office or" } ]

[ { "docid": "1567878", "title": "", "text": "may support specific jurisdiction where the act is directed at residents of the forum, and the cause of action relates to the act. Burger King Corp., 471 U.S. at 476 n. 18, 105 S.Ct. 2174 (citing McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)). In the specific jurisdiction rubric, only those acts which relate to the formation of the contract and the subsequent breach are relevant. In support of its argument that specific jurisdiction exists, RTC points to the fact that Liebreich participated in negotiations concerning the Estate-Flag contract while in Texas, and the fact that Liebreich signed the Estate-Flag contract while in Texas. However, neither of these acts were directed at residents of the forum state, or at the forum state itself. While it is well established that “with respect to interstate contractual obligations ... parties who reach out beyond one state and create ... obligations with citizens of another state are subject to regulation and sanctions in the other State for the consequences of their activities,” here, while contracting in the stead of a Florida resident, Liebreich reached out from Texas to residents of Florida (Flag) and California (RTC). Burger King, 471 U.S. at 473, 105 S.Ct. 2174. Therefore, the Estate did not direct its activities at the forum state. Moreover, the physical location of Liebr-eich at the time she signed the agreement and participated in negotiations on behalf of the Estate is not especially relevant in the analysis. The Supreme Court has rejected a formalistic rendering of minimum contacts, opting instead to look at the degree that a nonresident defendant has reached out and availed himself of the foreign venue. Here, in forming the contract, the Estate availed itself of the State of Florida and contracted exclusively with non-Texas residents. The Estate did not reach out to Texas, nor did it direct its contract-related activities toward Texas. It did not contract with Texas residents nor did it avail itself of Texas law in the formation of the contract. Therefore, the fact that Liebreich signed the contract in Texas" }, { "docid": "10117709", "title": "", "text": "state and create continuing relationships and obligations with citizens of another state are subject to regulations and sanctions in the other State for the consequences of their activities.’” Benton v. Cameco Corp., 375 F.3d at 1077 (quoting Burger King Corporation v. Rudzewicz, 471 U.S. at 473, 105 S.Ct. 2174). Relevant factors for assessing minimum contacts in a contract case include “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.” AST Sports Science, Inc. v. CLF Distribution Ltd., 514 F.3d at 1058 (quoting Burger King Corporation v. Rudzewicz, 471 U.S. at 479, 105 S.Ct. 2174). The fountainhead of the Supreme Court’s jurisprudence on personal jurisdiction based on contractual relationships is McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). There, Lowell Franklin, a California resident, purchased a life insurance policy from the Empire Mutual Insurance Company, an Arizona corporation. See 355 U.S. at 221, 78 S.Ct. 199. In 1948, International Life Insurance Company agreed with Empire Mutual to assume its insurance obligations. See 355 U.S. at 221, 78 S.Ct. 199. International Life then mailed a reinsurance certificate to Franklin in California offering to insure him in accordance with the terms of the policy he held with Empire Mutual. See 355 U.S. at 221, 78 S.Ct. 199. Franklin accepted this offer and from that time until his death in 1950 paid premiums by mail from his California home to International Life’s Texas office. See 355 U.S. at 221-22, 78 S.Ct. 199. Franklin’s mother, Lulu McGee, was the beneficiary under the policy, and upon his death, she sent proof to International Life of Franklin’s death. See 355 U.S. at 222, 78 S.Ct. 199. International Life refused to pay, claiming that he had committed suicide. See 355 U.S. at 222, 78 S.Ct. 199. Neither- Empire nor International Life ever had any office or agent in California. See 355 U.S. at 222, 78 S.Ct. 199. Further, the record did not reflect that International Life had ever done any insurance business in California apart from the policy with" }, { "docid": "10117713", "title": "", "text": "insured’s locality. Of course there may be inconvenience to the insurer if it is held amenable to suit in California where it had this contract but certainly nothing which amounts to a denial of due process. Cf. Travelers Health Ass’n v. Commonwealth of Virginia ex rel. State Corporation Comm., 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 [(1950)]. There is no contention that respondent did not have adequate notice of the suit or sufficient time to prepare its defenses and appear. 355 U.S. at 223-24, 78 S.Ct. 199. Approximately thirty years later, in 1985, the Supreme Court decided Burger King Corporation v. Rudzewicz. There, the Supreme Court observed that personal jurisdiction in a contractual dispute does not “turn on ‘mechanical’ tests or on ‘coneep-tualistic ... theories of the place of contracting or performance,’ ” but rather, requires a “highly realistic approach.” 471 U.S. at 478, 105 S.Ct. 2174 (quoting Int’l Shoe Co. v. Washington, 326 U.S. at 319, 66 S.Ct. 154). Accordingly, relevant factors for assessing minimum contacts in a contract case include “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.” Burger King Corporation v. Rudzewicz, 471 U.S. at 479, 105 S.Ct. 2174. In Burger King Corporation v. Rudzewicz, the Supreme Court concluded that personal jurisdiction existed, even though the nonresident defendant had not physically entered the forum state, because: (i) the defendant “reached out” to the forum state to enter into a franchising agreement with the plaintiff that “envisioned continuing and wide-reaching contacts” with the plaintiff in the forum state; (ii) the plaintiff and the defendant had engaged in extensive telephone communications; (iii) the franchising agreement provided that the franchise relationship was established in the forum state and that state’s law governed the relationship; and (iv) the defendant was a sophisticated businessman and there was no unfairness in the business dealings that would make the assertion of personal jurisdiction unconstitutional. 471 U.S. at 479-85, 105 S.Ct. 2174. In this case, Resource Associates has produced the Reciprocal Agreement, which clearly references Resource Associates and Southampton Union as" }, { "docid": "10117710", "title": "", "text": "assume its insurance obligations. See 355 U.S. at 221, 78 S.Ct. 199. International Life then mailed a reinsurance certificate to Franklin in California offering to insure him in accordance with the terms of the policy he held with Empire Mutual. See 355 U.S. at 221, 78 S.Ct. 199. Franklin accepted this offer and from that time until his death in 1950 paid premiums by mail from his California home to International Life’s Texas office. See 355 U.S. at 221-22, 78 S.Ct. 199. Franklin’s mother, Lulu McGee, was the beneficiary under the policy, and upon his death, she sent proof to International Life of Franklin’s death. See 355 U.S. at 222, 78 S.Ct. 199. International Life refused to pay, claiming that he had committed suicide. See 355 U.S. at 222, 78 S.Ct. 199. Neither- Empire nor International Life ever had any office or agent in California. See 355 U.S. at 222, 78 S.Ct. 199. Further, the record did not reflect that International Life had ever done any insurance business in California apart from the policy with Franklin. See 355 U.S. at 222, 78 S.Ct. 199. McGee recovered judgment in California, but Texas courts refused to enforce her judgment, holding that it was void under the Fourteenth Amendment, because the California courts did not have personal jurisdiction over International Life. See 355 U.S. at 221, 78 S.Ct. 199. The Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not preclude the California court from entering a judgment binding on International Life. See 355 U.S. at 222-23, 78 S.Ct. 199. In reaching this conclusion, the Supreme Court observed: Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity. 355 U.S. at 222-23, 78 S.Ct. 199. Turning to the case" }, { "docid": "22567404", "title": "", "text": "the district court improperly exercised personal jurisdiction over it. Applying reasoning analogous to that rejected , by the Ninth Circuit in Hunt, the Fourth Circuit held that solely by issuing a policy with a territory of coverage clause including Virginia, the company created sufficient minimum contacts to support the district court’s exercise of personal jurisdiction. Id. at 286. Rossman is troublesome for several reasons. First, the court’s holding is based almost entirely oh foreseeability. The Supreme Court, however, has cautioned that “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.” World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. 559. Second, within its foreseeability analysis, by chastising the defendant for having the ability to exclude certain forums from coverage and not exercising that ability, the court placed great weight on what the defendant did not do. Such reliance, however, is clearly at odds with the Supreme Court’s mandate that minimum contacts be based on the defendant’s affirmative actions which create a substantial connection with the forum state. See Burger King, 471 U.S. at 475, 105 S.Ct. 2174; Asahi, 480 U.S. at 112, 107 S.Ct. 1026. In August v. HBA Life Ins. Co., 734 F.2d 168 (4th Cir.1984) the Fourth Circuit again took an expansive view of minimum contacts in the insurance context. In that case, the insured brought suit against his insurer in Virginia. The policy, however, was issued to the insured in Arizona while he was an Arizona resident. Thereafter, the insured moved to Virginia and began mailing his premiums from Virginia to Arizona. The insured then filed a claim with the company from Virginia. The insurer denied the claim and sought to have the insured enter into an agreement which would have reduced coverage. The court held that by accepting premiums from Virginia and attempting to amend the agreement in Virginia, the defendant established contacts sufficient to permit personal jurisdiction over it. In Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1420 (10th Cir.1988), a nonresident insurer issued a policy to an Alabama resident covering a truck located in Alabama." }, { "docid": "4246743", "title": "", "text": "to support a court’s exercise of personal jurisdiction depends on the “particular facts of each ease.” Benton, 375 F.3d at 1076 (quotation omitted). A nonresident defendant has “minimum contacts” with the forum state when he “should reasonably anticipate being haled into court there.” World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559. A defendant may reasonably anticipate being subject to suit in the forum state “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.”). 1. Purposeful Availment An individual’s contract with an out-of-state party cannot, standing alone, establish sufficient minimum contacts with the forum state. Burger King, 471 U.S. at 478, 105 S.Ct. 2174. But “parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.” Id. at 473, 105 S.Ct. 2174. To determine whether a nonresident defendant has purposefully established minimum contacts with the forum state by contracting with another party, we therefore examine “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.” Id. at 479, 105 S.Ct. 2174. That is, the contract relied upon to establish minimum contacts must have a “substantial connection” with the forum state. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Moreover, this Court has indicated that the mere presence of the insured within the forum state will not establish a substantial connection. See Rombo v. Am. S. Ins. Co., 839 F.2d 1415, 1421 n. 8 (10th Cir.1988)" }, { "docid": "13655359", "title": "", "text": "is invoked when the claim is related to or arises out of the defendant’s contacts with the forum. Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208, 211 (3d Cir.1984) (citations omitted). Fiberfloat correctly notes that specific jurisdiction is at issue in the present case. B. The minimum contacts framework, as first set out in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), provides the standard for determining specific jurisdiction. Recently, the Supreme Court described the standard as the “constitutional touchstone” for the due process analysis of personal jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). In Burger King, the Supreme Court held that a Florida district court’s exercise of jurisdiction over a Michigan resident was constitutional where the Michigan resident had signed a long-term franchise contract which involved substantial connection to a Florida corporation. Id. at 479, 105 S.Ct. at 2185. The Court reasoned that the minimum contacts at issue must have a basis in some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state.” Id. at 475, 105 S.Ct. at 2183 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958)). Although the Court held that a single contract with a forum state resident may subject an out-of-state party to the jurisdiction of that state’s courts in a dispute arising from that contract, the Court cautioned that a contract alone cannot “automatically establish sufficient minimum contacts in the other party’s home forum_” Burger King, 471 U.S. at 478, 105 S.Ct. at 2185. Additionally, courts must evaluate “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing ... in determining whether the defendant purposefully established minimum contacts within the forum.” Id. at 479, 105 S.Ct. at 2185. This court considered the issue of minimum contacts, using the rationale in Burger King in an action where a New Jersey telephone company sued a California hotel" }, { "docid": "4246744", "title": "", "text": "the forum state. Burger King, 471 U.S. at 478, 105 S.Ct. 2174. But “parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.” Id. at 473, 105 S.Ct. 2174. To determine whether a nonresident defendant has purposefully established minimum contacts with the forum state by contracting with another party, we therefore examine “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.” Id. at 479, 105 S.Ct. 2174. That is, the contract relied upon to establish minimum contacts must have a “substantial connection” with the forum state. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Moreover, this Court has indicated that the mere presence of the insured within the forum state will not establish a substantial connection. See Rombo v. Am. S. Ins. Co., 839 F.2d 1415, 1421 n. 8 (10th Cir.1988) (finding due process not satisfied when the insurance contract was not mailed to forum state, the claim was not filed from the forum state, and no premiums were mailed from the forum state). We must therefore decide whether the insurance policies in the present case establish a substantial connection with Kansas. The Insurers did not solicit business in Kansas. Philips, headquartered in the Netherlands, solicited the insurance policies through a Dutch broker. In addition, the policies were issued to Philips in the Netherlands, THAN paid no premiums from Kansas, Philips tendered THAN’s claims in Europe, and all dealings relating to the policies and coverage for the asbestos claims against THAN took place either in the Netherlands or in Switzerland. These interactions in no way involve Kansas and are insufficient to establish minimum contacts with the state. Cf. McGee, 355 U.S. at 223, 78 S.Ct. 199 (finding insurance company established minimum contacts with California because “[t]he contract was delivered in California, the premiums were mailed from there and the insured was a resident of that State" }, { "docid": "10117712", "title": "", "text": "before it, the Supreme Court concluded that the California court had jurisdiction over International Life, explaining that “[i]t is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.” 355 U.S. at 223, 78 S.Ct. 199. The Supreme Court further stated: The contract was delivered in California, the premiums were mailed from there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. These residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable. When claims were small or moderate individual claimants frequently could not afford the cost of bringing an action in a foreign forum— thus in effect making the company judgment proof. Often the crucial witnesses—as here on the company’s defense of suicide—will be found in the insured’s locality. Of course there may be inconvenience to the insurer if it is held amenable to suit in California where it had this contract but certainly nothing which amounts to a denial of due process. Cf. Travelers Health Ass’n v. Commonwealth of Virginia ex rel. State Corporation Comm., 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 [(1950)]. There is no contention that respondent did not have adequate notice of the suit or sufficient time to prepare its defenses and appear. 355 U.S. at 223-24, 78 S.Ct. 199. Approximately thirty years later, in 1985, the Supreme Court decided Burger King Corporation v. Rudzewicz. There, the Supreme Court observed that personal jurisdiction in a contractual dispute does not “turn on ‘mechanical’ tests or on ‘coneep-tualistic ... theories of the place of contracting or performance,’ ” but rather, requires a “highly realistic approach.” 471 U.S. at 478, 105 S.Ct. 2174 (quoting Int’l Shoe Co. v. Washington, 326 U.S. at 319, 66 S.Ct. 154). Accordingly, relevant factors for assessing minimum contacts in a contract case include “prior" }, { "docid": "10040579", "title": "", "text": "act. Int'l Shoe, 326 U.S. at 320, 66 S.Ct. 154. It requires an affirmative, purposeful act on the part of a sophisticated corporation capable of assessing potential liability arising from the acquisition. Though Long Beach Mortgage Loan Trust 2001-4 has not physically entered this jurisdiction, “jurisdiction may sometimes exist even if a defendant ‘did not physically enter the forum state.’ ” Jung, M.D. v. Assoc. of Am. Medical Colleges, 300 F.Supp.2d 119, 129 (D.D.C.2004) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (emphasis in original)). It is also well established that an assignee of a contract created and to be performed in a particular forum may be subject to the jurisdiction of the forum’s courts, even if the assignee has no other relevant contacts with the forum. See McGee v. Int'l Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). In McGee, “neither Empire Mutual [Insurance Company] nor respondent [International Life Insurance Company] has ever had any office or agent in California. And so far as the record before us shows, respondent has never solicited or done any insurance business in California apart from the policy here.” McGee, 355 U.S. at 223, 78 S.Ct. 199. Yet the Court thought it apparent that the Due Process Clause did not preclude the California court from entering a judgment binding on respondent. It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State ... It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. These residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable. Id. Taking assignment of a contract demonstrates, in the purest sense, that the assignee has purposefully availed himself of the benefits of the enforcing State’s law, and accepted its burdens. See, e.g., Mouzavires, 434 A.2d at 992 (“It is now" }, { "docid": "22567405", "title": "", "text": "Burger King, 471 U.S. at 475, 105 S.Ct. 2174; Asahi, 480 U.S. at 112, 107 S.Ct. 1026. In August v. HBA Life Ins. Co., 734 F.2d 168 (4th Cir.1984) the Fourth Circuit again took an expansive view of minimum contacts in the insurance context. In that case, the insured brought suit against his insurer in Virginia. The policy, however, was issued to the insured in Arizona while he was an Arizona resident. Thereafter, the insured moved to Virginia and began mailing his premiums from Virginia to Arizona. The insured then filed a claim with the company from Virginia. The insurer denied the claim and sought to have the insured enter into an agreement which would have reduced coverage. The court held that by accepting premiums from Virginia and attempting to amend the agreement in Virginia, the defendant established contacts sufficient to permit personal jurisdiction over it. In Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1420 (10th Cir.1988), a nonresident insurer issued a policy to an Alabama resident covering a truck located in Alabama. The insured later moved to Texas where the truck was stolen. After filing a claim with the insurance company, thé insured moved to Oklahoma. The insurer denied the claim and the insured filed suit in the Oklahoma district court. The district court dismissed the claim for lack of personal jurisdiction. We affirmed the district court, holding that the insured’s random and fortuitous act of moving to Oklahoma and the insurer’s contacts with them in that state did not satisfy the minimum contacts standard. Surveying the relevant case law, we criticized August, stating that “the Fourth Circuit may have stretched the minimum contacts test too far.” Id. at 1420 n. 7. From a minimum contacts perspective, Farmers and Rossman are even more troubling than August. In those cases, the insurers received no premiums from the forum state and neither insurer attempted to reach into the forum state to renegotiate the insurance agreement. Also notable is the D.C. Circuit’s decision in Eli Lilly and Co. v. Home Ins. Co. 794 F.2d 710 (D.C.Cir.1986). In Eli Lilly, the" }, { "docid": "10117708", "title": "", "text": "its Superintendent. See Reply at 2. Southampton Union stresses that it responded to this direct solicitation for services which Resource Associates would provide in New York. See Reply at 2. Finally, Southampton Union conténds that Resource Associates was to provide the grant application in this case to the New York State Education Department, located in New York, even if the work product was to transpire in New Mexico. See Reply at 6. The question “[w]hether a nonresident defendant has the requisite contacts with the forum state to establish in personam jurisdiction must be decided on the particular facts of each case.” AST Sports Science, Inc. v. CLF Distribution Ltd., 514 F.3d 1064, 1058 (10th Cir.2008)(quoting Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996)(internal quotation marks omitted)). “A contract between an out-of-state party and a resident of the forum state cannot, standing alone, establish sufficient minimum contacts with the forum.” Benton v. Cameco Corp., 375 F.3d at 1077. “However, ‘with respect to interstate contractual obligations ... parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulations and sanctions in the other State for the consequences of their activities.’” Benton v. Cameco Corp., 375 F.3d at 1077 (quoting Burger King Corporation v. Rudzewicz, 471 U.S. at 473, 105 S.Ct. 2174). Relevant factors for assessing minimum contacts in a contract case include “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.” AST Sports Science, Inc. v. CLF Distribution Ltd., 514 F.3d at 1058 (quoting Burger King Corporation v. Rudzewicz, 471 U.S. at 479, 105 S.Ct. 2174). The fountainhead of the Supreme Court’s jurisprudence on personal jurisdiction based on contractual relationships is McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). There, Lowell Franklin, a California resident, purchased a life insurance policy from the Empire Mutual Insurance Company, an Arizona corporation. See 355 U.S. at 221, 78 S.Ct. 199. In 1948, International Life Insurance Company agreed with Empire Mutual to" }, { "docid": "16072471", "title": "", "text": "contact may be sufficient ... when the underlying proceeding is directly related to that contact.” Id. at 419. See McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Nevertheless, “a defendant will not be haled into a jurisdiction solely as a result of ... the ‘unilateral activity of another party or third person.’” Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Even if a defendant’s contacts satisfy either test, the exercise of jurisdiction must not “offend traditional notions of fair play and substantial justice.’ ” Trierweiler v. Croxton and Trench Holding Corporation, 90 F.3d 1523, 1533 (10th Cir.1996) (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. at 158). In deciding if an action so offends, factors to be considered are (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 social policies. See Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); OMI Holdings, Inc. v. Royal Insurance Co. of Canada, 149 F.3d 1086 (10th Cir.1998). The strength of these factors sometimes serves to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. See Burger King, 471 U.S. at 477, 105 S.Ct. 2174; Ticketmaster-New York, Inc. v. Joseph M. Alioto, 26 F.3d 201, 210 (1st Cir.1994). Conversely, the factors may be so weak that even though minimum contacts are present, subjecting the defendant to jurisdiction in that forum would offend due process. See Burger King, 471 U.S. at 477, 105 S.Ct. 2174; Ticketmaster-New York, 26 F.3d at 210. Nevertheless, “[t]he Due Process Clause may not [ ] be wielded as a territorial shield to avoid interstate obligations that" }, { "docid": "22451128", "title": "", "text": "at the behest of a California resident, even though the insurer had no office or agent in California and had never performed any other business in that state. The McGee Court articulated a principle of marked importance for our purposes: in order to be subject to the jurisdiction of the forum state, a nonresident need have only one contact with the forum, so long as the contact is meaningful. See id. at 223, 78 S.Ct. at 201 (“It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.”). Accordingly, McGee stands for the proposition that “minimum contacts” is not necessarily a numbers game; a single contract can fill the bill. For our purposes, McGee remains good law. In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the Court, citing McGee, affirmed the principle that “even a single act can support jurisdiction.” Id. at 475 n. 18, 105 S.Ct. at 2184 n. 18. In that case, the Justices held that a court sitting in Florida properly could exercise jurisdiction over a Michigan resident in a suit brought by a Florida corporation for breach of a franchise agreement, even though the defendant’s only relationship to the forum state was of a contractual nature. Explaining that “^jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State,” id. at 476, 105 S.Ct. at 2184, the Supreme Court observed that “where individuals ‘purposefully derive benefit’ from their interstate activities, it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed.” Id. at 474-75, 105 S.Ct. at 2188 (quoting Kulko v. California Superior Court, 436 U.S. 84, 96, 98 S.Ct. 1690, 1699, 56 L.Ed.2d 132 (1978)). These opinions demonstrate that the jurisprudence of minimum contacts easts a wide net, and a nonresident defendant" }, { "docid": "22569651", "title": "", "text": "out of the franchise agreement. While the Court found jurisdiction in Burger King, we believe for three reasons that the approach adopted in that case fully supports our result today. First, the Court made clear that, as this court held in Whittaker, supra, more is required to support jurisdiction than the mere fact of a contractual relationship with a forum state resident. The Court said: If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot____ [W]e have emphasized the need for a 'highly realistic’ approach that recognizes that a ‘contract’ is 'ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.’ ... It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum. at —, 105 S.Ct. at 2185 (quoting Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316-317, 63 S.Ct. 602, 604-605, 87 L.Ed. 777 (1943)). Second, the Court said that a single act can confer jurisdiction only where it creates a “ ‘substantial connection’ with the forum,” id., — U.S. at —, at n. 18, 105 S.Ct. at 2184, n. 18 (quoting McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957)). For the reasons set forth at pages 934-935 of this opinion, we believe that M.N., Inc.’s single guaranty forged no substantial connection between it and the Commonwealth of Massachusetts. Third, none of the supplemental contacts relied upon in Burger King, nor contacts comparable to them, are present in this case. In Burger King, the Court examined the relationship between Burger King’s home office and the Michigan franchise, and found that the franchisees had \"deliberately ’reach[ed] out beyond’ Michigan and negotiated with a Florida corporation for the purchase of" }, { "docid": "13148272", "title": "", "text": "78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957), the Court has expressly denied that an individual’s contract with an out-of-state party can alone automatically establish sufficient minimum contacts. Burger King, 105 S.Ct. at 2185. It is essential that the contract relied upon have a “substantial connection” with the forum state. McGee, 355 U.S. at 223, 78 S.Ct. at 201. The factors considered in determining whether the defendant purposefully established minimum contacts with the forum include “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.” Burger King, 105 S.Ct. at 2186. In undertaking the minimum contacts analysis, it must be borne in mind that “unilateral activity of another party or a third person is not an appropriate consideration.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984). The attenuated contact here distinctly contrasts with the more “substantial and continuing relationship” described in Burger King, 105 S.Ct. at 2190. There, the Court found personal jurisdiction over a Michigan franchisee in the franchisor’s home state, Florida. The defendant franchisee initiated dealings with the plaintiff Florida corporation to obtain the desired franchise, and “entered into a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts.” Id. at 2186. Frequent communications passed between the franchisee in Michigan and the franchisor’s Florida headquarters. Id. at 2187. Moreover, the franchise documents provided that all disputes would be governed by Florida law, giving the defendant fair notice that he might be subject to suit in Florida. Id. at 2187, 2190. Similarly, in McGee, the contacts were of a less transient nature. The life insurance contract in question remained in force over a period of several years, was delivered in the forum state, and the premiums were mailed from there. 355 U.S. at 221-23, 78 S.Ct. at 200-01. If Burger King and McGee demonstrate what is sufficient in the realm of minimum contacts, this case demonstrates what is inadequate. The contract for reindeer antlers between Chung and NANA was finalized in Alaska, and though its essential terms were" }, { "docid": "4483477", "title": "", "text": "tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.” It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum. Burger King Corp. v. Rudzewiez, 471 U.S. 462, 478-79, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted); see Scullin Steel Co. v. Nat’l Ry. Utilization Corp., 676 F.2d 309, 313 (8th Cir.1982) (“Merely entering into a contract with a forum resident does not provide the requisite contacts between a (nonresident) defendant and the forum state.”). In Burger King, the Supreme Court upheld the exercise of personal jurisdiction by a Florida court over a Michigan resident who had entered into a 20-year franchise agreement with a Florida corporation. 471 U.S. at 487, 105 S.Ct. 2174. Although the Michigan resident had no physical contacts with Florida apart from his associate’s brief training course in Miami, the contract had a substantial connection with Florida. Id. at 479, 105 S.Ct. 2174. The Michigan resident negotiated with a Florida corporation to purchase a franchise and obtain the benefits of affiliation with a nationwide organization. Id. at 479-80, 105 S.Ct. 2174. The negotiations yielded a 20-year franchise agreement that envisioned “continuing and wide-reaching contacts” with the corporation in Florida, including “long-term and exacting regulation” of the franchise from the corporation’s Miami headquarters. Id. at 480, 105 S.Ct. 2174. The franchise agreement contained a Florida choice-of-law clause. Id. at 481, 105 S.Ct. 2174. Insufficient by itself to confer jurisdiction, the choice-of-law clause, combined with the 20-year relationship established between the Michigan resident and the Florida corporation, “reinforced [the Michigan resident’s] deliberate affiliation with the forum State and the reasonable foreseeability of possible litigation there.” Id. at 482,105 S.Ct. 2174; see Wessels, Arnold & Henderson v. Nat’l Med. Waste, Inc., 65 F.3d 1427, 1434 (8th Cir.1995) (“The choice-of-law clause, like the mail and telephone contacts, is insufficient standing alone to confer jurisdiction. However, when these contacts are" }, { "docid": "3665279", "title": "", "text": "protections of its laws.” Schwarzenegger, 374 F.3d at 802 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). For claims sounding in tort, we instead apply a “purposeful direction” test and look to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere. Id. at 802-03. Because Picot asserts both a contract and a tort claim, both tests are at issue here. A. A claim for declaratory judgment-as to the existence of' a contract is an action sounding in contract. See Stanford Ranch, Inc. v. Md. Cas. Co., 89 F.3d 618, 625 (9th Cir.1996) (“[A] claim dependent on the existence of an underlying contract sounds in contract, as opposed to tort.”). Therefore, our minimum contacts inquiry for Picot’s declaratory judgment claim focuses on whether Weston purposefully availed himself of the privilege of conducting business within California through the purported oral contract. “[A] contract alone does not automatically establish minimum contacts in the plaintiffs home forum.” Boschetto, 539 F.3d at 1017. Rather, there must be “actions by the defendant himself that create a ‘substantial connection’ with the forum State.” Burger King, 471 U.S. at 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)). Merely “random, fortuitous, or attenuated” contacts are not sufficient. Id. (internal quotation marks omitted). A defendant must have “performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state.” Sher, 911 F.2d at 1362 (quoting Sinatra v. Nat'l Enquirer, Inc., 854 F.2d 1191, 1195 (9th Cir.1988)). In determining whether such contacts exist, we consider “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.” Burger King, 471 U.S. at 479, 105 S.Ct. 2174. Applying this standard, we conclude that Picot has not demonstrated that Weston had sufficient minimum contacts with California to subject him to specific personal jurisdiction there. Under the disputed oral agreement, Weston was obligated to develop" }, { "docid": "8080304", "title": "", "text": "difference between the Perkins facts and the International Shoe facts, and stated: “The instant case takes us one step further to a proceeding in personam to enforce a cause of action not arising out of the corporation’s activities in the state of the forum.” 342 U.S. at 446, 72 S.Ct. at 418. The Court proceeded to enumerate the company’s rather substantial contacts with the State of Ohio and concluded that the due process clause did not prohibit the courts of Ohio from taking jurisdiction of the case if it were appropriate to do so under state law. In contrast with the Perkins fact situation, the facts in McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) involved a defendant with minimal contacts with the forum state, but the contacts that existed were directly related to the plaintiff’s claim. In McGee, the plaintiff, a California resident, was the beneficiary of a life insurance policy, who sued in a California court to collect the proceeds of the policy after the insured (also a California resident) died. The defendant was a Texas-based insurance company that had assumed the obligations of the insurance contract from another insurance company. The defendant had mailed a reinsurance certificate to the insured in California, and the insured had mailed premiums from his home in California to the defendant’s Texas office. The defendant maintained neither office nor agent in California, and had neither solicited nor done business there, apart from the transaction with this insured. Nevertheless, the Court found the exercise of in personam jurisdiction to be valid. The Court made the following comment on the trend of “minimum contacts” law: Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more states and may involve parties separated by a full continent. With this increasing nationalization of commerce has come a great" }, { "docid": "10478070", "title": "", "text": "characterization of the facts. The check was delivered by Bundesen to McClain pursuant to the terms of the contract. Whether McClain tortiously induced the delivery of the check knowing that performance was impossible is a question to be resolved at trial, but this Court concludes that the manner of payment was within Bundesen’s discretion and that providing McClain with a check drawn on a Delaware bank is not enough to have § 3104(c)(3) apply to McClain. See Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974, 983 (1981) (court held that acceptance of a check, which was merely ancillary to a sale which occurred exclusively in Maryland, cannot be said to constitute purposeful activity within Pennsylvania). DUE PROCESS Even if the long arm statute extended far enough to give this Court personal jurisdiction over McClain, due process considerations would preclude the exercise of such jurisdiction. “[T]he constitutional touchstone” used to determine whether an exercise of personal jurisdiction comports with due process “remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). In Burger King the Supreme Court reaffirmed the well established reasoning of Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958), that minimum contacts must be based on “some act by which the defendant purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefit and protections of its laws.” 471 U.S. at 475, 105 S.Ct. at 2183. As the Burger King Court went on to state, “[¿jurisdiction is proper ... where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State.” Id. (quoting McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957)) (emphasis in original). The plaintiffs argue that the constitutionally necessary minimum contacts were established by McClain’s accepting" } ]

[ { "docid": "4396934", "title": "", "text": "stated with particularity. We recently held a practically similar indictment to be good. Karger v. U. S. (C. C. A.) 46 F.(2d) 302, decided January 15, 1931. The question may now be considered settled in practically every circuit. If appellant did not. know the details of the transaction not shown by the indictment, he was entitled to a bill of particulars. No doubt that would have been granted by the District Court, but it was not asked for. It was not error to overrule the demurrer. Appellant complains that the verdict of the jury in finding him guilty on the seventh count of the indictment, while acquitting him on all the other counts, one of which charged the unlawful possession of intoxicating liquor, is inconsistent. That is a matter that should address itself to the discretion of the District Court in awarding a new trial. The verdict on the seventh count is clear and unambiguous, and its inconsistency with the verdict on other counts is not a question that could be reviewed on appeal. The proof in support of the verdict tended to show that appellant had made a sale of one pint of whisky. It is contended That, under the provisions of the Act of March 2,1929, known as the Jones Act (27 U SCA §§ 91, 92), the court erred in imposing a sentence of a year and a day in the penitentiary, as his offense was casual or slight. Under the Act of January 15, 1931 (27 US CA § 91), amending the Act of March 2, 1929, considering that the record does not show a previous conviction or that appellant is an habitual violator, the maximum penalty would have been a fine not to exceed $500 or imprisonment without hard labor not to exceed six months or both. However, The amendatory act does not contain a provision applying it to previously committed offenses, and therefore, under the provisions of Rev. St. § 13 (1 USCA § 29), it has no application to pending eases. The proviso in the first section of the Act of March 2," } ]

[ { "docid": "15807619", "title": "", "text": "simply disregarding the unnecessary and apparently inadvertent repetition of the quantity of liquors which the indictment avers the defendants conspired to import, transport, and possess. The dialogue between court and counsel at the time of the motion for leave to withdraw the pleas and to demur and/or move to quash clearly indicates that it was then the opinion of counsel that the indictment was duplicitous because it alleged a conspiracy to commit, a number of independent and different offenses. In a prosecution under see-lion 37 (18 USCA § 88) the conspiracy being the gist of the offense, conviction may be had even though the substantive offense was never committed, and the indictment does not become duplicitous because such conspiracy embraces more than one substantive offense. Remus v. U. S., 291 F. 501 (C. C. A. 6); Bailey v. U. S., 5 F.(2d) 437 (C. C. A. 5); Frohwerk v. U. S., 249 U. S. 204, 39 S. Ct. 249, 63 L. Ed. 561. There was, and could be, no possible doubt but that the defendants knew specifically the nature of the charge against them, were able to prepare for their defense, and might plead their conviction or acquittal under the instant indictment should they subsequently be reindicted for tho same offense. These have been held to be the tests of a good indictment. Cf. Wong Tai v. U. S., 273 U. S. 77, 81, 47 S. Ct. 300, 71 L. Ed. 545; Grant v. U. S., 268 F. 443, 445 (C. C. A. 6); Leonard v. U. S., 18 F.(2d) 208 (C. C. A. 6). The time has passed, it has been said, when convictions will be reversed for mere technical defects in pleading. Hill v. U. S., 42 F.(2d) 812, 814 (C. C. A. 4). In Martin v. U. S., 299 F. 287,288 (C. C. A. 4), Judge Rose said: “The sufficiency of a criminal pleading should be determined by practical, as distinguished from purely technical, considerations. Does it, under all the circumstances of the ease, tell the defendant all that he needs to know for his defense, and" }, { "docid": "14736624", "title": "", "text": "HUTCHESON, District Judge. In this case, upon the trial of an indictment joining three counts, one against Chevis, one against Todd, and one against Todd and Day jointly, Chevis was acquitted, and Todd and Day found guilty as charged. The first count charged in substance that on the 8th day of October, 1929, at Tampa, Hillsborough county, Fla., one T. M. Chevis had in his unlawful possession one pint of whisky; the second that Pirl Todd did, on the same day and in the same place, have in his possession intoxicating liquors, to wit, 59 bottles of home-brew beer, containing one-half of 1 per cent, and more of alcohol by volume fit and intended for use for beverage purposes, while the third count charged that, on the same day and in the same city and county, Pirl Todd and Leo Day did “unlawfully, willfully and knowingly maintain a common nuisance, that is to say, a certain one story frame building, located at 713 Morgan Street, city, county and district aforesaid, where intoxicating liquors containing % of 1% of alcohol by volume were then and there unlawfully kept for sale and sold for beverage purposes.” The United States established by the uncontroverted testimony of its witnesses, the defendants offering no proof, that there were two small buildings, with a space six or eight feet between, one numbered 713 Morgan street, known as Leo Day’s place, the other known as the tire shop; that the rear of the tire shop and of 713 Morgan street were connected by a shed; that Day owned and maintained 713 Morgan street ostensibly as a taxi stand; but that it had long had the reputation of being a place where into^icating liquors were commonly sold; that the place had been under more or less constant observation; that many persons had been seen, especially at night, going into Day’s place; ears had been seen to drive up and drive away, while one MeMurray had been arrested in connection with some liquor in a garbage can in a vacant lot back of the place; that Day had on" }, { "docid": "14736630", "title": "", "text": "282 U. S. 694, 51 S. Ct. 240, 75 L. Ed.-, Feb. 24, 1931; and that its action in refusing the motion presented on the day before the trial for bill of particulars was an exercise of its discretion, which presents no reviewable error, Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545. It is also .apparent that there was no error in the action of the court in admitting in evidence the bottle of whisky seized from Chevis,- that broken in Day’s place, and the 59 bottles of - home-brew beer found in the little tire shop. As to the first bottle, it, when seized, was not in the possession of appellants, but of Chevis, and neither of them can complain of the invasion of Chevis’ constitutional rights, while as to the bottle broken in Day’s place, and the beer seized in the adjoining tire shop, the officer had right to seize them as incident to the lawful arrest of Todd, whom he had actually apprehended in an overt yiolation of the law. In addition to these assignments, appellants present and urge most vigorously three others — that the court erred in refusing their motion to direct a verdict, because, as a matter of law, the proof at best for the government showed merely the taking of orders for whisky at 713 Morgan street, but that none was kept for sale or sold there; or, if there was an issue as to that point, that the court erred in the submission of the issue to the jury, both in refusing to give the charge which appellants requested and in charging as the court did. Appellants cite Heitman v. U. S. (C. C. A.) 5 F.(2d) 887; Hattner v. U. S. (C. C. A.) 293 F. 381, to the effect that the government, having in the indictment specifically described the place where the alleged nuisance was maintained, must prove the place as laid; and Miller v. U. S. (C. C. A.) 300 F. 529, to the effect that, where the evidence at" }, { "docid": "3390803", "title": "", "text": "in holding that the indietment charged two separate offenses, and also erred in imposing a separate sentence under each count. We think there was no error in either respect. In the first count, the charge was that the sale was not in pursuance of a written order; in the second count, the charge was that the sale was of the drug not in or from the original stamped package. The statute makes the two offenses distinct, and it is apparent that evidence sufficient for conviction of one of the offenses would not necessarily be sufficient for conviction of the other. It is true that there was but one transaction in the ease at bar: but, on the trial, the evidence, when complete as to the first offense, was supplemented by further evidence in order to make it complete as to the second offense. This was permissible. Stokes v. United States, 39 F.(2d) 440 (C. C. A. 8); Walsh v. White, 32 F.(2d) 240 (C. C. A. 8); Amendola v. United States (C. C. A.) 17 F.(2d) 529; Harrison v. United States (C. C. A.) 7 F.(2d) 259. See, also, Morgan v. Devine, 237 U. S. 632, 641, 35 S. Ct. 712, 59 L. Ed. 1153; Albrecht v. United States, 273 U. S. 1, 11, 47 S. Ct. 250, 71 L. Ed. 505. We may add that in our opinion cumulative sentences approaching the maximum for separate offenses growing out of one and the same transaction should not be imposed except in aggravated eases. Doubtless the trial court obseiwed this rule. It is still further urged that there was no authority for making the sentences on the two counts run consecutively instead of concurrently. The law is established to the contrary. Daugherty v. United States, supra; United States v. Daugherty, 269 U. S. 360, 46 S. Ct. 156, 70 L. Ed. 309; Howard v. United States (C. C. A.) 75 F. 986, 34 L. R. A. 509. Other contentions urged have been considered, but discussion of them has not been found needful. The judgment is affirmed." }, { "docid": "22287431", "title": "", "text": "Daniel C. Mulloney so to wilfully rnisapply the moneys, funds, and credits of said member bank in the amount and of the value of one hundred and thirty-one thousand dollars ($131,000.00) as heretofore in this count of this indictment set forth.” The defendant Mulloney filed a motion for particulars which was granted in part and denied in part. The action of the court in so far as it denied the motion gives rise to the first assignment of error. The purpose of a bill of particulars is the better to apprise the defendant of the crime charged to enable him properly to prepare his defense. It is not to furnish him in advance with the government's evidence and, if the indictment properly sets forth a crime, a motion of this character which would unduly limit the evidence of the government should not be granted. Rubio v. United States (C. C. A.) 22 F.(2d) 766; .Robinson v. United States (C. C. A.) 33 F.(2d) 238; United States v. Brown (D. C.) 56 F.(2d) 659. In this case all the essential elements of the misapplication charged, including the time, place, and means of bringing it about, were set forth in the indictment. The information which it contained, together with the copy of the Ganley note, which the government was required to furnish under the defendant’s motion, sufficiently advised him of the nature of the transaction constituting the crime and furnished adequate protection against a further prosecution for the same offense. The particulars requested, in so far as they were denied, called for evidence which the government might use in support of the allegations of the indictment, and their denial rested in the sound discretion of the court, which clearly was not abused in this instance. Wong Tai v. United States, 273 U. S. 77, 92, 47 S. Ct. 300, 71 L. Ed. 545; Hartzell v. United States (C. C. A.) 72 F.(2d) 569, 575; Rubio v. United States (C. C. A.) 22 F.(2d) 766, 767, 768; Horowitz v. United States (C. C. A.) 262 F. 48, 49. This disposes of the first" }, { "docid": "1550671", "title": "", "text": "45 S. Ct. 509, 69 L. Ed. 1157; Newingham v. United States, 4 F.(2d) 490 (C. C. A. 3), certiorari denied, 268 U. S. 703, 45 S. Ct. 638, 69 L. Ed. 1166; Haywood v. United States, 268 F. 795 (C. C. A. 7); and see Schenck v. United States, 249 U. S. 47, 50, 39 S. Ct. 247, 63 L. Ed. 470; Bilodeau v. United States, 14 F.(2d) 582, 585 (C. C. A. 9). We do not read the Go-Bart Case as laying down a contrary doctrine. Hence wo conclude that the corporate records were properly admitted as against the appellants. Error is assigned to the District Court’s refusal to grant a motion for a bill of particulars. While the general charge of conspiracy was very broad, subsequent allegations of the indictment set out a full and adequate outline of what the government expected to prove. It cannot bo contended that the defendants were taken by surprise upon the trial. The motion for a bill of particulars is addressed to the trial court’s discretion (Wong Tai v. United States, 273 U. S. 77, 82, 47 S. Ct. 300, 71 L. Ed. 545), and we find no abuse of discretion here. Cf. Horowitz v. United States, 262 F. 48, 49 (C. C. A. 2). Objection is made that the witness Wood was allowed to testify to a conversation he had with an unknown person who instructed him how to keep the fictitious books of ac count. No error is apparent. Wood had testified that De Vasto and Potenti had sent him to meet the unknown person to get such instructions. The evidence was not offered to prove the truth of what the stranger said but to prove that through De Vasto and Potenti the witness was informed how to keep the books. The hearsay rule was not involved. Objection is also made to certain testimony of the witness Nooney as to the market price of near beer. It will suffice to say we see no error in its admission. See Wigmore, Evid. (2d Ed.) §§ 716-720. Witness Kohl, called by" }, { "docid": "2963060", "title": "", "text": "of the charge he was called upon to meet, and protected against a second prosecution for the same offense. It was good against demurrer,’ general or special, and against motion to quash.” See, also, Banta v. United States (C. C. A.) 12 F.(2d) 765; Goldberger v. United States (C. C. A.) 4 F. (2d) 10; United States v. Behrman, 258 U. S. 280, 42 S. Ct. 303, 66 L. Ed. 619. The demurrer to the indictment was therefore. properly overruled. The sufficiency of the evidence was directly challenged by a motion for a directed verdict, and it is contended that there was no proof to show that the form of stamps described in the indictment had in fact been prescribed and issued by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, or that the strip stamps possessed and used by the defendants were in the resemblance and similitude of genuine strip stamps prescribed by the Commissioner of Internal Revenue. It appears from the record that on May 31, 1929, three police officers went to 3005 East Fifty-Ninth street, Kansas City, Jackson county, Missouri, and, on looking through the basement windows, saw the defendants at work corking, stamping, and capping a number of filled pint bottles, and placing them, when so corked, stamped, and capped, in a carton. After finishing capping these bottles, defendant Armstrong put several bottles in his pocket and started toward the basement door, but, observing one of the officers, he removed the bottles from his pocket and placed them on a shelf. The defendant Roberts then opened the door and let the officers into the basement. The officers thereupon arrested the defendants, and found in the basement 124 pint bottles of whisky, some strip stamps that had been used, and a can of celon caps. Some of the stamps had been placed over corks in bottles filled with colored whisky and bearing labels of “Old Taylor Kentucky Whisky.” These articles found by the officers in possession of the defendants were identified by witnesses and marked for identification as Exhibits 1 to" }, { "docid": "22287432", "title": "", "text": "case all the essential elements of the misapplication charged, including the time, place, and means of bringing it about, were set forth in the indictment. The information which it contained, together with the copy of the Ganley note, which the government was required to furnish under the defendant’s motion, sufficiently advised him of the nature of the transaction constituting the crime and furnished adequate protection against a further prosecution for the same offense. The particulars requested, in so far as they were denied, called for evidence which the government might use in support of the allegations of the indictment, and their denial rested in the sound discretion of the court, which clearly was not abused in this instance. Wong Tai v. United States, 273 U. S. 77, 92, 47 S. Ct. 300, 71 L. Ed. 545; Hartzell v. United States (C. C. A.) 72 F.(2d) 569, 575; Rubio v. United States (C. C. A.) 22 F.(2d) 766, 767, 768; Horowitz v. United States (C. C. A.) 262 F. 48, 49. This disposes of the first assignment of error.’ Both defendants demurred to the indictment. Mulloney filed a motion to quash. The motion adds nothing to the questions raised by the demurrers. Both demurrers are substantially the same. The main complaints are (1) that the first count does not state an offense against the laws of the United States, and (2) that it is so indefinite and uncertain as not to inform the defendants of the nature of the accusation against them, and because of its indefiniteness does not conform to the requirements of the Sixth Amendment of the .Constitution; and (3) that it is contradictory and duplicitous — that it is the latter because it charges three offenses in one count (misapplication of moneys, funds, and credits) — and is contradictory in that it charges Mulloney himself with an offense and also charges that it was committed by him through the exercise of an alleged control, direction, and management over the affairs of the bank. We have carefully examined the indictment and the grounds of the demurrers and motion to" }, { "docid": "14723175", "title": "", "text": "the prohibition acts, and proof as to either will support conviction. McDonnell v. U. S. (C. C. A.) 19 F.(2d) 801. Not only in the general charging part of the indictment, but in the statement of the overt acts, the conspiracy is fully and sufficiently alleged. Miller v. U. S. (C. C. A.) 300 F. 529; Hartson v. U. S. (C. C. A.) 14 F.(2d) 561; Tomplain v. U. S. (C. C. A.) 42 F.(2d) 203; Perry v. U. S. (G. C. A.) 39 F.(2d) 52; Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545. Nor was there error in the court’s action on the other counts except the third. The third count failing to charge that the liquor in question had theretofore been unlawfully imported, and being therefore defective, the demurrer to this count should have been sustained. Hartson v. U. S. (C. C. A.) 14 F.(2d) 561. This error is harmless, however, because the sentences imposed upon the defendants were less than might have been imposed upon the valid counts of the indictment. The contention which the appellants mainly labor is that there was error in the admission of the evidence of the chief Government witness himself a eoeonspirator, as to conversations and transactions had in January and February, 1929, at Abbeville, La., with one of the defendants, Hogan, whom the evidence shows to have been one of the moving spirits in the conspiracy, as to shipments of liquor from Abbeville, appellants claiming that this was in effect an admission in proof of other crimes than those charged, and that it was therefore highly prejudicial to them. The point is wholly without merit. While it is true that the indictment does charge in the conclusion of the stating part that “thereafter intoxicating liquors were to be transported to Gueydan, Louisiana, from which point they were again to be transported to various places,” the indictment is not and cannot be thereby limited to the particular Gueydan transaction referred to in the statement of overt acts; and in the substantive counts of" }, { "docid": "14736627", "title": "", "text": "but there is a shed that goes back that connects both of them.” There was testimony that Day and Todd had been frequently seen hanging around this place. The testimony as to the occurrences on October 8th, when the arrests out of which this indictment grew were made,, is to the effect that prohibition officers, having seen Chevis stop in front of \"Day’s place, 713 Morgan street, and Todd, the waiter, come out of there, talk to Chevis, go back into the building, go around behind and to a little shed room in another building about eight feet back of 713 Morgan street, and come out with a bottle partly wrapped which he gave to Chevis, had accosted Chevis and seized the bottle, which proved to be whisky; that immediately thereafter, seeing Todd, the waiter, who, after delivering the bottle to Chevis, .had gone back to the little room at the rear, come out of there and go into 713 Morgan street with a bottle in his hand, he had followed him in in time to see him throw the bottle out of the window, and to see the broken bottle and contents on the ground. This bottl'e also had' contained whisky. Having arrested Chevis and Todd, he then went back to the little building whence he had seen Todd twice emerge, and entering, seized 59 bottles of intoxicating beer. Day and Todd have appealed, urging reversible error in overruling their joint and several motions for bill of particulars and to quash, their demurrers to the indictment for misjoinder and indefiniteness, and their objections to the introduction in evidence of the liquors seized, because seized without probable cause as to them. From the statement of the evidence above, it is clear that, though ordinarily it is not good practice to join in an indictment counts charging distinct offenses against separate defendants, U. S. v. McConnell (D. C.) 285 F. 164, the action of the court in this case cannot be assigned as prejudicial error, not only because a motion to quash is ordinarily addressed to the discretion of the court" }, { "docid": "23443052", "title": "", "text": "of the offense with such certainty that it cannot be pronounced bad on motion to quash or demurrer, and yet is couched in such language that the accused is liable to be surprised by the production of evidence for which he is unprepared, his remedy is a bill of particulars. Billingsley v. U. S. (C. C. A. 8) 16 F.(2d) 754. The allowance or refusal of an application for a bill of particulars rests in the sound discretion of the trial court. Wong Tai v. U. S. (opinion filed January 3, 1927) 47 S. Ct. 300, 71 L. Ed.-; Bill-ingsley v. U. S., supra. We cannot upon an examination of the record in this case, say that the court abused its discretion in denying the motion for a bill of particulars. The record does not indicate that O’Neill was taken by surprise in the progress of the trial, or that his substantial rights were in any wise prejudiced by tbe denial of tbe motion. Wong Tai v. U. S., supra; Connors v. U. S., 158 U. S. 408, 411, 15 S. Ct. 951, 39 L. Ed. 1033; Armour Packing Co. v. U. S., 209 U. S. 56, 84, 28 S. Ct. 428, 52 L. Ed. 681; New York Central R. R. v. U. S., 212 U. S. 481, 497, 29 S. Ct. 304, 53 L. Ed. 613. Tbe introduction in evidence of tbe summary, wbieb Manning prepared, of tbe statements given by O’Neill, is also assigned as error. Statements and declarations by an accused, from wbieb, in connection witb other evidence of surrounding circumstances, an inference of guilt may be drawn, if shown to have been made voluntarily (Bram v. U. S., 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 568; 16 C. J. p. 628, § 1247), are admissible against him as admissions. (U. S. v. Larkin, 4 Cranch, C. C. 617, Fed. Cas. No. 15,561; State v. Jackett, 85 Kan. 427,116 P. 509; State v. Mariano, 37 R. I. 168, 91 A. 21, 27; Jones v. State, 13 Ala. App. 10, 68 So. 690, 695;" }, { "docid": "13346393", "title": "", "text": "ALSCHULER, Circuit Judge. Appellant was found guilty on counts 1 and 2, and not guilty on counts 3 and 4, of an indictment of four counts, each charging that he did willfully and knowingly attempt to defeat and evade taxes due the United States, imposed as to counts 1 and 2 by the Revenue Act of 1926, and as to counts 3 and 4 by the Revenue Act of 1928. Counts 1 and 2 charged the offense with reference to taxes for the year 1927, and counts 3- and 4 as to the year 1928. He was sentenced to two years’ imprisonment and $10,000 fine on each of counts 1 and 2, the sentences to run concurrently, and one payment of $10,000 to satisfy both fines. Error is assigned upon denial of appellant’s motion for a bill of particulars, and much argument is devoted to this proposition. The allowance of bills of particulars is within the discretion of the court [Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545; Dunlop v. United States, 165 U. S. 486, 17 S. Ct. 375, 41 L. Ed. 799; Rosen v. United States, 161 U. S. 29, 16 S. Ct. 434, 40 L. Ed. 606; Norcott v. United States, 65 F.(2d) 913 (C. C. A. 7); Zito v. United States, 64 F.(2d) 772 (C. C. A. 7)], although, as in other matters of discretion, abuse of the discretion may constitute reversible error. The indictment descended into particulars considerably further than the indictment in the recent case of Capone v. United States (C. C. A. 7) 56 F.(2d) 927, 934. While we there stated that had a bill of particulars been requested the court would not likely have refused it, yet even there it was not indicated that its refusal, if asked, would have constituted reversible error. The court in its sound discretion always has power, and it is its duty, to protect a defendant against surprises in the development of the Government’s case, and against a defendant being placed in position where he is at an" }, { "docid": "23443050", "title": "", "text": "sufficiently earmark and identify the particular offense. Count 1 charged the essential elements of the offense with sufficient certainty to enable O’Neill to prepare his defense, and after judgment to plead the record and judgment in bar of a further prosecution for the same offense. Count 1 is not duplicitous. Where a statute denounces several things as a crime and connects them with the disjunctive “or,” the pleader, in drawing an indictment, should connect them by the conjunctive “and.”- An indictment so drawn is not bad for duplicity, and where the testimony establishes the guilt of the defendant as to any one of the things charged conviction may follow. Ackley v. U. S., supra; Shepard v. U. S. (C. C. A. 9) 236 F. 73, 82; Simpson v. U. S. (C. C. A. 9) 229 F. 940, 942, 943; Rowan v. U. S. (C. C. A. 5) 281 F. 137, 188, 139; Jacobsen v. U. S. (C. C. A. 7) 272 F. 399; Crain v. U. S., 162 U. S. 625, 634, 635, 636, 16 S. Ct. 952, 40 L. Ed. 1097. We conclude that count 1 of the indictment was sufficient and that the demurrer was properly overruled. The defendant also filed a motion for a bill of particulars. This motion was denied, and the ruling is assigned as error. By this motion O’Neill sought an order requiring the government to state the exact date of the sale, the exact time of day of the sale, the exact place of the sale, which defendants were present at the sale, who delivered the drugs, the amount of money paid, who paid the money, who furnished the money to the purchaser, what kind of container the morphine was in, the markings on the container, the copy of the label on the package, whether Feinberg was an informer, any evidence the government relied on to prove O’Neill was a person who dealt in narcotie drugs, any prior sales which the government relied on, and who'was present when such sales were made. Where an indictment sets forth the facts constituting the essential elements" }, { "docid": "23443051", "title": "", "text": "S. Ct. 952, 40 L. Ed. 1097. We conclude that count 1 of the indictment was sufficient and that the demurrer was properly overruled. The defendant also filed a motion for a bill of particulars. This motion was denied, and the ruling is assigned as error. By this motion O’Neill sought an order requiring the government to state the exact date of the sale, the exact time of day of the sale, the exact place of the sale, which defendants were present at the sale, who delivered the drugs, the amount of money paid, who paid the money, who furnished the money to the purchaser, what kind of container the morphine was in, the markings on the container, the copy of the label on the package, whether Feinberg was an informer, any evidence the government relied on to prove O’Neill was a person who dealt in narcotie drugs, any prior sales which the government relied on, and who'was present when such sales were made. Where an indictment sets forth the facts constituting the essential elements of the offense with such certainty that it cannot be pronounced bad on motion to quash or demurrer, and yet is couched in such language that the accused is liable to be surprised by the production of evidence for which he is unprepared, his remedy is a bill of particulars. Billingsley v. U. S. (C. C. A. 8) 16 F.(2d) 754. The allowance or refusal of an application for a bill of particulars rests in the sound discretion of the trial court. Wong Tai v. U. S. (opinion filed January 3, 1927) 47 S. Ct. 300, 71 L. Ed.-; Bill-ingsley v. U. S., supra. We cannot upon an examination of the record in this case, say that the court abused its discretion in denying the motion for a bill of particulars. The record does not indicate that O’Neill was taken by surprise in the progress of the trial, or that his substantial rights were in any wise prejudiced by tbe denial of tbe motion. Wong Tai v. U. S., supra; Connors v. U. S., 158" }, { "docid": "14736629", "title": "", "text": "and is not the subject of review by an appellate court, Gay v. U. S. (C. C. A.) 12 F.(2d) 433, and because, if there was misjoinder, the objection was not well taken by demurrer, but ¿must be by motion to compel an election, Optner v. U. S. (C. C. A.) 13 F. (2d) 11; Etheredge v. U. S. (C. C. A.) 186 F. 434, but also because, though the indictment does contain separate counts as to separate defendants, the matters charged in reality constitute but one series of transactions, and the facts relied upon for the conviction of Chevis in the first, and Todd in the second, count, are the same facts relied upon for the conviction in the third count of Todd and Day, Davis v. U. S. (C. C. A.) 12 F.(2d) 253. It is also apparent that the .court did not err in overruling the demurrers and motions to quash for want of definiteness and certainty, Maceo v. U. S. (5th C. C. A.) 46 F.(2d) 788; Husty v. U. S., 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed.-, Feb. 24, 1931; and that its action in refusing the motion presented on the day before the trial for bill of particulars was an exercise of its discretion, which presents no reviewable error, Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545. It is also .apparent that there was no error in the action of the court in admitting in evidence the bottle of whisky seized from Chevis,- that broken in Day’s place, and the 59 bottles of - home-brew beer found in the little tire shop. As to the first bottle, it, when seized, was not in the possession of appellants, but of Chevis, and neither of them can complain of the invasion of Chevis’ constitutional rights, while as to the bottle broken in Day’s place, and the beer seized in the adjoining tire shop, the officer had right to seize them as incident to the lawful arrest of Todd, whom he had actually apprehended" }, { "docid": "11394146", "title": "", "text": ", . , e ,, . « , refused and separate trial ox the issue of ter- ., . , . . V , ,, jurisdiction was denied, the court or- ■» . #. « ■. , . *1 .. ,. * , *1*. denng it to be tried by the jury along with the merits. The jury found Priee guilty, and he appeals, assigning for error the rulings just stated, the refusal to instruct a verdict of not guilty, tlie refusal to allow his wife to testify, and certain instructions in the charge. The indictment was very full and specific and needed no enlargement by bill of partieulars. The refusal of it was well within the court’s discretion. No surprise developed in the trial. Dunlop v. United States, 165 U. S. at page 491, 17 S. Ct. 375, 41 L. Ed. 799; Wong Tai v. United States, 273 U. S. 77, 82, 47 S. Ct. 300, 71 L. Ed. 545. Nor was there error m the disposition made of the special plea,. The usual wayo± contesting the territorial jurisdiction of the court to try a crime under the Sixth Amendment of the Constitution is on a plea of not guilty, which puts in issue the whole case and enables the defendant to make any special de-. fense which goes to an original absence of guilt as charged. Bishop s New Criminal Procedure, §§ 743,799. The burden is then upon the prosecution-to prove the jurisdictional allegation as to the place of the offense with the same certainty as any o hear °n Pain of failure to convict. Vernon v. United States (C. C. A.) 146 F. 121; Moran v. United States (C. C. A.) 264 F. 768. Bishop says: “It seems that the defendant cannot plead to an indictment before justices that the offense was committed at some place beyond their jurisdiction for this would amount to no more than the general issue. New Criminal Proc. § 736. There may, however, be great convenience m the separate tnal of such an issue m eases of real doubt, just as a" }, { "docid": "14736628", "title": "", "text": "to see him throw the bottle out of the window, and to see the broken bottle and contents on the ground. This bottl'e also had' contained whisky. Having arrested Chevis and Todd, he then went back to the little building whence he had seen Todd twice emerge, and entering, seized 59 bottles of intoxicating beer. Day and Todd have appealed, urging reversible error in overruling their joint and several motions for bill of particulars and to quash, their demurrers to the indictment for misjoinder and indefiniteness, and their objections to the introduction in evidence of the liquors seized, because seized without probable cause as to them. From the statement of the evidence above, it is clear that, though ordinarily it is not good practice to join in an indictment counts charging distinct offenses against separate defendants, U. S. v. McConnell (D. C.) 285 F. 164, the action of the court in this case cannot be assigned as prejudicial error, not only because a motion to quash is ordinarily addressed to the discretion of the court and is not the subject of review by an appellate court, Gay v. U. S. (C. C. A.) 12 F.(2d) 433, and because, if there was misjoinder, the objection was not well taken by demurrer, but ¿must be by motion to compel an election, Optner v. U. S. (C. C. A.) 13 F. (2d) 11; Etheredge v. U. S. (C. C. A.) 186 F. 434, but also because, though the indictment does contain separate counts as to separate defendants, the matters charged in reality constitute but one series of transactions, and the facts relied upon for the conviction of Chevis in the first, and Todd in the second, count, are the same facts relied upon for the conviction in the third count of Todd and Day, Davis v. U. S. (C. C. A.) 12 F.(2d) 253. It is also apparent that the .court did not err in overruling the demurrers and motions to quash for want of definiteness and certainty, Maceo v. U. S. (5th C. C. A.) 46 F.(2d) 788; Husty v. U. S.," }, { "docid": "14723174", "title": "", "text": "HUTCHESON, District Judge. On an indictment charging in the first count conspiracy to handle intoxicating liquors in violation of both the National Prohibition and the tariff laws, in the second count unlawful importation of intoxicating liquors, in the third count unlawful concealment thereof after importation, and in the fourth count unlawful transportation, ten defendants, appellants here, were convicted. Four were convicted on all four counts; four on counts 2, 3, and 4, while two, Bryan and Smith, were convicted on the conspiracy count alone. Appellants complain of the action of the court below in overruling their motion to quash and their demurrers to the four counts of the indictment, while error is assigned to the ruling in all the counts, the brief argues only the error as to the conspiracy count submitting the point as to the other three counts without argument. There is no merit in the attack on the conspiracy count. It is competent to charge,, and the indictment does charge, simply and clearly a single conspiracy to violate both the tariff and the prohibition acts, and proof as to either will support conviction. McDonnell v. U. S. (C. C. A.) 19 F.(2d) 801. Not only in the general charging part of the indictment, but in the statement of the overt acts, the conspiracy is fully and sufficiently alleged. Miller v. U. S. (C. C. A.) 300 F. 529; Hartson v. U. S. (C. C. A.) 14 F.(2d) 561; Tomplain v. U. S. (C. C. A.) 42 F.(2d) 203; Perry v. U. S. (G. C. A.) 39 F.(2d) 52; Wong Tai v. U. S., 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545. Nor was there error in the court’s action on the other counts except the third. The third count failing to charge that the liquor in question had theretofore been unlawfully imported, and being therefore defective, the demurrer to this count should have been sustained. Hartson v. U. S. (C. C. A.) 14 F.(2d) 561. This error is harmless, however, because the sentences imposed upon the defendants were less than might have been" }, { "docid": "23549557", "title": "", "text": "v. Liphardt, 105 Mich. 84, 62 N. W. 1022; Goode v. U. S., 159 U. S. 663-669, 16 Sup. Ct. 136, 40 L. Ed. 297; Goldman v. U. S. (C. C. A. 6) 220 Fed. 57-62, 135 C. C. A. 625. The evidence offered on the part of the United States tends to prove that the public officials of Michigan were acting in good faith; that they did suspect, and had .reasonable ground to suspect, that these defendants were engaged in the unlawful transportation of liquor into the state of Michigan; and that these officials made no mistake in arriving at that conclusion. The court did not err in refusing to compel the government to elect between the fifth and twenty-third counts of this indictment, because each of these counts charged an offense to have been committed on the same date. It is -clear from the indictment itself that these counts charge separate offenses. The fifth count charges the unlawful transportation of three automobile loads of whisky in bottles, aggregating approximately 750 quarts of whisky. The twenty-third count charges the unlawful transportation into Michigan of five automobile loads of whisky in bottles, aggregating 1,389 quarts of whisky. Both of these offenses might have been committed on the same date, so that these counts do not on their face, and clearly not upon the evidence, relate to the same transaction. Nor does the date in an indictment necessarily limit the prosecution to proof of the commission of the offense upon that identical date, provided the date proven is prior to the date of the filing of the indictment, and is in such reasonable proximity to the actual date named in the indictment that the defendants could not have been prejudiced or misled thereby. Section 1025, R. S. (Comp. St. § 1691); U. S. v. Molloy (C. C.) 31 Fed. 19; Dierkes v. U. S. (No. 3362, decided by this court June 7, 1921) 274 Fed. 75. In this particular case it is clear that this departure from the exact date in the indictment in no way affected the substantial rights of" }, { "docid": "2205217", "title": "", "text": "of April, 1926. which contained an article entitled, “What Price Glory.” Tbe second count was dismissed. The third count covered an issue of the same publication October, 1926, and contained an article entitled, “Those Women of the Days of Helen of Troy Differed Little from Aimee and Her Kind.” A demurrer to the indictment by defendant Turner was overruled. A trial was had, and resulted in the conviction of both defendants on counts 1 and 3. Turner was sentenced to two years in the penitentiary at Leavenworth on each eount, the same to run concurrently; and Alice Martin was sentenced to pay a fine of $500 on each eount. The specifications of error relied upon and which will be considered are, first, the overruling of the demurrer to the indictment; interposed by Turner; second, allowing the reading from the April issue of certain parts of the article specified; third, allowing the reading of certain parts of the October issue of “Much Ado” in addition to the article specified; fourth, refusal of a request to charge the jury; fifth, prejudicial remarks by the prosecuting attorney; sixth, prejudicial remark by the court. Other specifications of error challenge the ruling denying a directed verdict at the close of the government’s case. Inasmuch, however, as evidence was thereafter introduced by the defendants, objection to the ruling was waived. The overruling of the demurrer to count 1 interposed by Turner only, is challenged in this court. This may be disregarded, as the sentence imposed upon him under this eount was made to run concurrently with the sentence imposed upon him under count 3, which is not attacked; so that, even if the demurrer to eount 1 should have been sustained, the sentence, under count 3 would still be valid. United States v. Trenton Potteries, 273 U. S. 392, 401, 402, 47 S. Ct. 377, 71 L. Ed. 700, 50 A. L. R. 989; Hood v. United States, 14 F.(2d) 925 (C. C. A. 8); Wenstrand v. United States, 20 F.(2d) 325 (C. C. A. 8). As to the reading to the jury of a portion" } ]

[ { "docid": "14280861", "title": "", "text": "a month later. She filed her federal complaint on April 7, 2005. A Title VII action must be filed “within ninety days” after receipt of notice of an administrative decision on plaintiffs EEO complaint. 42 U.S.C. § 2000e-5(f)(l) (2000); 42 U.S.C. § 2000e-16(c); Mondy v. Secretary of the Army, 845 F.2d 1051, 1052 (D.C.Cir.1988) (time for filing action runs from date of plaintiffs receipt of notice). ‘ The circuits disagree about what constitutes “receipt” of a certified letter by a plaintiff, sufficient to trigger the 90-day filing period. The D.C. Circuit does not appear to have addressed this exact issue. Among the circuits that have addressed the “receipt” question, some have held that attempted delivery of a certified letter is sufficient to constitute constructive receipt. See, e.g., Watts-Means v. Prince George’s Family Crisis Ctr., 7 F.3d 40 (4th Cir.1993) (90-day period begins with post office notice of letter availability); Johnson-Brown v. Wayne State Univ., 173 F.3d 855, 1999 WL 191322 (6th Cir.1999). Other circuits require actual receipt of a document. See, e.g., Jackson v. Contl. Cargo-Denver, 183 F.3d 1186 (10th Cir.1999) (plaintiff who filed suit 89 days after retrieving certified letter from post office, but more than 90 days after Postal Service first attempted to send letter, fell within statutory time limit of 90 days); Houston v. Sidley & Austin, 185 F.3d 837 (7th Cir.1999). Even the circuits that require actual receipt, however, have declined to apply the actual notice rule to plaintiffs whose failure to receive actual notice has been through their own fault. Thus, where a plaintiff failed to notify the administrative agency of a changed address, or failed to timely retrieve her mail from the post office, the actual notice rule did not apply. See Houston 185 F.3d at 839. In this case, under the standards adopted by any circuit, Ms. Christmas failed to file her complaint within the 90-day statutory period. She failed to act upon a notice that the certified letter of the final agency decision was available for pick-up on October 19, 2004, although the Postal Service held the letter for over a month." } ]

[ { "docid": "11959203", "title": "", "text": "objection to Plaintiffs suit. In particular, Title VII permits an aggrieved federal employee or applicant for federal employment to sue his employer, but only “[w]ithin 90 days of receipt of notice of final agency action taken by [the] ... [federal] agency ... or by the [EEOC] upon an appeal from a decision or order of such ... agency ... on a complaint of discrimination based on race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-16(c). Here, there is no question that the EEOC issued its final decision on April 26, 2013, see Dkt. 14-2, and that Plaintiff filed his complaint with this Court on August 6, 2013, see Dkt. 1. That represents a gap of 102 days between issuance of the final decision and initiation of Plaintiffs lawsuit. Defendants recognize, however, that the statutory clock runs from “receipt of notice” of the EEOC’s decision and not from the date of issuance. Defendants posit that there is a presumption that a complainant will receive notice within three to five days from issuance, and that, even with credit for an additional five days, Plaintiffs lawsuit was still untimely. Dkt. 14-1 at 7. The first question the Court must consider is whether Title VII’s 90-day statute of limitations imposes a jurisdictional barrier to suit or, rather, establishes an affirmative defense. This matters for two reasons. First, as explained above, to the extent Defendants’ motion chai- lenges the Court’s jurisdiction under Rule 12(b)(1), the Court may consider evidence outside the pleadings. See Herbert, 974 F.2d at 197. Second, although not without exception, the plaintiff typically bears the burden of proving that the Court has jurisdiction over the matter, see Lujan, 504 U.S. at 561, 112 S.Ct. 2130, while the defendant bears the burden of proof on most affirmative defenses, see, e.g., Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997). Absent explicit language from Congress stating otherwise, a statute of limitations defense is not jurisdictional. See Day v. McDonough, 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). In the context of suits against the government, however, application of this" }, { "docid": "3762849", "title": "", "text": "only proper if there are no genuine disputed issues of material fact, and the moving party is entitled to judgment as a matter of law.” Id. I. ADEA Claim The ADEA prohibits discrimination based on age “against any individual with respect to his compensation, terms, conditions, or privileges of employment.” 29 U.S.C. § 623(a)(1). To file a civil lawsuit for age discrimination, the ADEA requires a plaintiff first to file a discrimination complaint with the EEOC “within 180 days after the alleged unlawful practice occurred.” 29 U.S.C. § 626(d)(1). The 180-day filing period begins to run from “[a] final decision to terminate the employee.” Cocke v. Merrill Lynch & Co., Inc., 817 F.2d 1559, 1561 (11th Cir.1987). And a “final decision” to terminate, “rather than actual termination, constitutes the ‘alleged unlawful practice’ that triggers the filing period. Thus, the 180-day period is counted from the date the employee receives notice of termination.” Id. (internal citations omitted)(emphasis added). A “final decision” that remains uncommunicated to the terminated employee has no impact on the statutory filing deadline. Grayson v. K Mart Corp., 79 F.3d 1086, 1100 n. 19 (11th Cir.1996)(“[T]he time for filing an EEOC charge begins to run when the employee receives unequivocal notice of the adverse employment decision.”)(emphasis added). The district court determined Wright failed to meet the 180-day filing requirement, reasoning that Wright should have filed his grievance within 180 days of learning about the hiring of Burks, 15 September 1999: The event which triggers the start of the 180 day clock is not necessarily notice of termination or the last day worked, but rather when “the facts which would support a charge of discrimination are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Wright v. AmSouth Bancorp., No. 00-2357, slip op. at 2-3 (N.D.Ala. Nov. 27, 2001)(quoting Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025 (11th Cir.1994))(emphasis added). The district court held — as a matter of law — that Wright had sufficient notice of the facts necessary to file his case on 15 September 1999. [W]hen a supervisor" }, { "docid": "10428674", "title": "", "text": "district court dismissed Count One because Bowden, by failing to comply with the thirty-day complaint-filing requirement contained in 29 C.F.R. § 1613.217(b) (1991), had not timely exhausted his administrative remedies. Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it. Brown v. Marsh, 777 F.2d 8, 13 (D.C.Cir.1985). If the defendant meets its burden, the plaintiff then bears the burden of pleading and proving facts supporting equitable avoidance of the defense. Bayer, 956 F.2d at 333; Jarrell, 753 F.2d at 1091-92; cf. 29 C.F.R. § 1613.214(a)(4) (1991) (recodified as amended at 29 C.F.R. § 1614.204(c)). In this case, the pleadings and undisputed documents in the record establish that Bow-den faded to meet the thirty-day notification requirement. As his brief concedes, Bowden did not write to the INS about its alleged failure to pay all the required taxes on the settlement award until December 1991, nearly a year after Bowden received payment from the Government and, as his complaint acknowledges, eight months after notices from the IRS and the Maryland Tax Department alerted him that he owed tax on the settlement award. Bowden argues, as he did in his August 24,1992, letter, that because he could not know that the INS had failed to comply with the settlement agreement until the agency clearly denied his allegations, the thirty-day clock did not begin to run until the INS first responded to his allegations of noncompliance on July 24, 1992. In some cases, notably where a complainant’s knowledge of agency noncompliance depends on information in the government’s possession, action by the agency may indeed be the appropriate trigger for the running of the thirty-day clock. See, e.g., Aiken v. Reilly, No.90-0987-LFO, 1991 WL 126000, at *3 (D.D.C. June 26, 1991), aff'd sub nom. Aiken v. Browner, No. 92-5151, 1993 WL 267511 (D.C.Cir. July 7, 1993); cf. Loe v. Heckler, 768 F.2d 409, 418-19 (D.C.Cir.1985) (holding that when, because of information withheld by the government, a complainant neither knew nor reasonably could have known that the government had made a discriminatory employment decision, the" }, { "docid": "4816584", "title": "", "text": "not make a charge within the 300-day deadline from the date of the discrimination — the last day of their individual employment at DPR. Thus, the only issue here is whether the Court should apply its equitable discretion to toll the statute of limitations. Before filing a Title VII suit against an employer, an employee must adequately exhaust her administrative remedies within the manner and time limits prescribed by statute. Baird v. Snowbarger, 744 F.Supp.2d 279, 286 (D.D.C. 2010). Due to a work sharing agreement between the EEOC and the DCOHR, an employee in the District of Columbia is required to file an EEOC charge within 300 days of alleged discrimination. Tucker v. Howard Univ. Hosp., 764 F.Supp.2d 1, 6 (D.D.C.2011) (citing Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 568-69 n. 13 (D.C.2007)). The procedural requirements governing a plaintiffs right to bring a Title VTI claim are “part and parcel of the congressional design” to give employers an opportunity to first handle matters internally whenever possible, and to ensure that federal courts are burdened only when reasonably necessary. Winston v. Clough, 712 F.Supp.2d 1, 7 (D.D.C.2010) (internal citations omitted); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (“Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of ... sympathy for particular litigants.”). At the same time, administrative time limits created by the EEOC do not create a jurisdictional bar to bringing a Title VII suit, but function as a statute of limitations. Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997). A plaintiffs untimely exhaustion of administrative remedies is thus an affirmative defense, and the defendant first bears the burden of proving the inadequacy of the plaintiffs actions. Id. The plaintiff then bears the burden of pleading and proving facts supporting any reason for an equitable extension of administrative time limits. Hines v. Bair, 594 F.Supp.2d 17, 23 (D.D.C.2009) (citing Armstrong v. Reno, 172 F.Supp.2d 11, 21 (D.D.C.2001)). It is solely within judicial discretion to apply" }, { "docid": "21711008", "title": "", "text": "(internal citation omitted). Of course, courts may also take “judicial notice of facts on the public record ... to avoid unnecessary proceedings when an undisputed fact on the public record makes it clear that the plaintiff does not state a claim upon which relief could be granted.” See Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting)). Failure to exhaust administrative remedies is an affirmative defense. See Mondy v. Sec’y of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (Mac-Kinnon, J., concurring) (citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it.” (citing Brown, 777 F.2d at 13)). Defendants can meet their burden of pleading and proving a failure to exhaust at the motion-to-dismiss stage by using the pleadings and undisputed documents in the record. See Bowden, 106 F.3d at 437. V. ANALYSIS Defendant moves to dismiss only Ms. Sierra’s claims of allegedly discriminatory and retaliatory non-promotions that occurred from 2008 to 2012, and from 2014 to 2016, on the grounds that Ms. Sierra failed to exhaust her administrative remedies. See Def.’s Mot. Dismiss at 6. With respect to the former category of non-promotions, Ms. Sierra contends that she adhered to the purpose of the LOC’s administrative procedure, and that even if she did not, Defendant has waived her failure-to-exhaust defense, because the LOC accepted, investigated, and decided her complaint. See Pl.’s Opp’n Def.’s Mot. Dismiss (“Pl.’s Opp’n”) at 7-11, ECF No. 6. With respect to the non-promotions from 2014 to 2016, Ms. Sierra contends that those specific instances of retaliation or discrimination were part of an ongoing pattern of discrimination that the LOC was on notice of from her previous complaint. See Pl.’s Opp’n at 6-7. Plaintiff also argues that any reliance on the administrative record requires the Court to" }, { "docid": "18516464", "title": "", "text": "2505, 91 L.Ed.2d 202 (1986)). The burden is on the moving party to demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B.Analysis To bring a civil action under Title VII, the plaintiff must file the complaint “within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed.” 29 C.F.R. § 1614.407(a); see McAlister v. Potter, 733 F.Supp.2d 134, 143 (D.D.C.2010) (“ ‘[Wjithin 90 days of receipt of notice of final action taken by a department, agency ... an employee or applicant for employment, if aggrieved by the final disposition of his complaint ... may file a civil action.’ ”) (quoting 42 U.S.C. § 2000e-16(c)). The ninety-day period begins when the plaintiffs counsel receives notice of the agency’s decision. Harris v. Bodman, 538 F.Supp.2d 78, 80 (D.D.C.2008) aff'd, No. 08-5091, 2008 WL 5532102 (D.C.Cir. Aug. 27, 2008). A court may dismiss a suit for missing the deadline by one day. See Woodruff v. Peters, 482 F.3d 521, 525 (D.C.Cir.2007); Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C.2006). It is well-settled that the statutory time limit for filing a lawsuit under Title VII is subject to waiver, estoppel, and equitable tolling. See Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C.2006) (“[T]he ninety-day time period is nonjurisdictional — it functions like a statute of lim itations and is subject to waiver, estoppel, and equitable tolling.”) (citing Mondy v. Sec. of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988)); Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997) (“[Functioning like statutes of limitations, these time limits are subject to equitable tolling, estoppel, and waiver.”). “No matter how slight the tardiness, a court is not at liberty to disregard the 90-day deadline out of a vague sympathy for any particular plaintiff,” however. Turner v. Afro-American Newspaper Co., 572 F.Supp.2d 71, 73 (D.D.C.2008) (citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)). “[T]o apply equitable tolling," }, { "docid": "14669774", "title": "", "text": "which starts the thirty-day time clock for filing a Title VII employment discrimination complaint against the federal government. The statute is of little assistance, providing only that a civil action may be filed “[wjithin thirty days of receipt of notice of final action taken” by the employing agency or by the EEOC on the employee or applicant’s administrative complaint. But the statute does not define “receipt.” The EEOC regulations are no more specific. Though requiring the EEOC or employing agency to “notify an employee or applicant of his right to file a civil action, and of the 30-day time limit for filing,” the regulations take no position on the crucial question of whether receipt of a right-to-sue letter by an employee’s attorney is notice to the employee of the administrative decision. The government suggests that the triggering event for the thirty-day time period is receipt of the EEOC right-to-sue letter by the claimant or by the office of the claimant’s attorney, whichever occurs first. The district court agreed, finding it lacked jurisdiction over Irwin’s Title VII claim because the complaint was filed more than thirty days after the right-to-sue letter arrived at Irwin’s attorney’s office. Irwin argues that the thirty-day period should not begin running until the claimant receives actual notice of his right to sue, or at least until the attorney has actual notice. Our analysis begins with Ringgold v. National Maintenance Corp. Ringgold involved a Title VII action against a private employer, with a ninety-day period for filing suit. In that case, the attorney who filed Ringgold’s administrative complaint subsequently left her two-attorney partnership. The EEOC right-to-sue letter arrived at the firm’s office on October 6, and was signed for by a relative of the remaining partner. Because the remaining partner was out of town, neither attorney learned about the EEOC decision until October 10. The complaint was filed on January 6, ninety-two days after arrival of the right-to-sue letter. We held that the suit was not timely filed, concluding that “the 90-day period of limitation established by 42 U.S.C. § 2000e-5(f)(l) begins to run on the date" }, { "docid": "14669778", "title": "", "text": "to liberally construe the provisions of Title VII. In Cooper, we relied on three cases from other circuits interpreting § 2000e-16(c), the statute now before us. In Bell v. Brown, a divided panel of the D.C. Circuit read “receipt” in § 2000e-16(c) to mean receipt by the employee, relying on the principle of liberal construction of remedial statutes. It also rested its decision on judicial deference to administrative construction of the statute, arguing that the “Civil Service Commission’s interpretations of that section have consistently reflected the theme that the 30-day period for suit is not set in motion until notice of the final administrative action is obtained by the affected employee, irrespective of when it might reach a representative.” The dissent emphasized that parties are generally deemed to have notice of facts known to their attorneys. In Craig v. Department of Health, Education & Welfare, the Eighth Circuit followed Bell, giving the same two reasons for its decision. However, it carved out an exception where a certified letter is sent to a representative designated by the employee, addressed in accordance with the employee’s specific directions, and the representative personally acknowledges receipt of the notice. In Rea v. Middendorf the Sixth Circuit relied on Bell to affirm dismissal of a Title VII complaint, reasoning that the thirty-day period began running when the employee received notice of the adverse administrative decision, and not from the later date when his attorney received notice. In Cooper, we expressed approval for the holdings of Bell, Craig and Rea in dicta: [S]ince the Commission did not intend the fifteen-day time period established by Commission regulations to commence upon receipt of notice by the complainant’s representative, and since that interpretation comports with the policy that the Act should be liberally construed in favor of those that it is designed to protect, we are compelled to hold that the constructive notice doctrine is inapplicable here. While the Sixth, Eighth, and D.C. Circuit cases dealt with the statutory thirty-day time period, we find their reasoning applicable here and agree with their result. Indeed, we find that result even more" }, { "docid": "17074922", "title": "", "text": "the Complaint as untimely. Under Title VII, “[w]ithin 90 days of receipt of notice of final action taken by a[n] ... agency ... an employee ... may file a civil action.” 42 U.S.C. § 2000e-16(c). Courts apply the ninety-day limit strictly and “will dismiss a suit for missing the deadline by even one day.” Woodruff v. Peters, 482 F.3d 521, 525 (D.C.Cir.2007) (internal citation and quotation marks omitted). However, failure to file in a timely manner is not a jurisdictional bar. In re James, 444 F.3d 643, 647-48 (D.C.Cir.2006) (“[n]either timeliness [n]or administrative exhaustion [is] jurisdictional”) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94-95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (“the provision [creating the deadline] for filing charges with the [Equal Employment Opportunity Commission] should not be construed to erect a jurisdictional prerequisite to suit in the district court”). Since the filing deadline is not jurisdictional, it is a requirement that, “like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes, 455 U.S. at 393, 102 S.Ct. 1127. However, “[fjederal courts have typically extended equitable relief [to late filers] only sparingly.” Irwin, 498 U.S. at 96, 111 S.Ct. 453. In determining when to grant the relief, “[courts] have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period.” Id. In the Title VII context, the statutory time limit to file a Complaint in federal court begins upon receipt of the final agency order. See 42 U.S.C. § 2000e-16. In order to determine when a party received notice of a final agency decision, “[c]ourts generally presume that [the] plaintiffs receive decisions either three or five days after their issuance.” McAlister v. Potter, 733 F.Supp.2d 134, 143 (D.D.C.2010) (internal citation and quotation marks omitted). Furthermore, “[c]ourts may also presume that the decision was mailed on the same day it was issued.” Id. (internal citation and quotation marks omitted). Both of these presumptions" }, { "docid": "6383634", "title": "", "text": "created by the EEOC erect no jurisdictional bars to bringing suit. Rather, functioning like statutes of limitations, these time limits are subject to equitable tolling, estoppel, and waiver.” Bowden, 106 F.3d at 437; see Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C.Cir.1985) (“[A] a timely administrative charge is a prerequisite to initiation of a Title VII action in the District Court.”); Perry v. U.S. Dep’t of State, 669 F.Supp.2d 60, 64 & n. 4 (D.D.C. 2009). A complainant’s failure to exhaust administrative remedies is an affirmative defense which the Defendant must plead and prove. See Brown v. Marsh, 777 F.2d 8, 13 (D.C.Cir.1985). If the Defendant meets his burden, the Plaintiff “then bears the burden of pleading and proving facts supporting equitable avoidance of the defense.” Bayer v. U.S. Dep’t of the Treasury, 956 F.2d 330, 333 (D.C.Cir.1992); see Bowden, 106 F.3d at 437. The court will exercise its “equitable power to toll the statute of limitations ... only in extraordinary and carefully circumscribed instances,” Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988), and application of the doctrine of equitable tolling is solely within the court’s discretion, see SmithHaynie v. District of Columbia, 155 F.3d 575, 579 (D.C.Cir.1998). The Plaintiffs discrimination complaint arises from his termination, and termination is “[a] discrete ... discriminatory act [which] occurred on the day that it happened,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (internal quotation marks omitted); see Coppinger-Martin v. Solis, 627 F.3d 745, 749 (9th Cir.2010) (concluding that the statute of limitations began to run when the complainant learned of her actual injury, i.e., the decision to terminate her employment); Gordon v. Office of the Architect of the Capitol, No. 09-1262, 750 F.Supp.2d 82, 92-93, 2010 WL 4568832, at *8 (D.D.C. Nov. 12, 2010) (concluding that the limitations period began to run on the date the complainant was informed that she had not been selected for a position). According to the Defendant, “the undisputed record reveals that [the Plaintiff] failed to contact an EEO counselor within 45 days" }, { "docid": "5003007", "title": "", "text": "granted.” See Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting)). Failure to exhaust administrative remedies is an affirmative defense. See Mondy v. Sec’y of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., concurring) (citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it.” (citing Brown, 777 F.2d at 13)). Defendants can meet their burden of pleading and proving a failure to exhaust at the motion-to-dismiss stage by using the pleadings and undisputed documents in the record. See Bowden, 106 F.3d at 437. B. Conversion into a Motion for Summary Judgment Ms. Vasser claims that because Defendant’s exhaustion arguments are predicated upon materials outside the Second Amended Complaint, the Court must treat the motion as one for summary judgment, entitling her to discovery not yet had. See PL’s Opp’n to Mot, Dismiss at 13-15. She explicitly “does not concede that the Reports of Investigation to which [Defendant relies are ‘incorporated’ into her complaint,” and does not view the taking of judicial notice of such materials as appropriate in this case. See id. at 14. Ms. Yasser believes that discovery is necessary on the exhaustion issues “particularly in light of [Djefendant’s refusal to produce at the administrative level documents, including the OIG report, relating to [her supervisor’s illegal practice of manipulating ... hiring procedures.” Id. She also believes that discovery might show that employees of the VA impeded her access to the EEO process. See id. at 15. Plaintiff does not contend that the documents are not authentic. See generally id. The VA argues that the necessary administrative documents are incorporated in Plaintiffs complaint by reference and, because they are publicly available, the Court can take judicial notice of them. See Mot. Dismiss at 8-9. In general, if the Court" }, { "docid": "21711007", "title": "", "text": "sufficient factual allegations that, if accepted as true, would state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Instead, plaintiffs must “nudge[ ] their claims across the line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the parties.” Busby v. Capital One, N.A., 932 F.Supp.2d 114, 133-34 (D.D.C. 2013) (internal citations and quotation marks omitted). “[A] document need not be mentioned by name to be considered ‘referred to’ or ‘incorporated by reference’ into the complaint.” Strumsky v. Wash. Post Co., 842 F.Supp.2d 215, 218 (D.D.C. 2012) (internal citation omitted). Of course, courts may also take “judicial notice of facts on the public record ... to avoid unnecessary proceedings when an undisputed fact on the public record makes it clear that the plaintiff does not state a claim upon which relief could be granted.” See Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting)). Failure to exhaust administrative remedies is an affirmative defense. See Mondy v. Sec’y of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (Mac-Kinnon, J., concurring) (citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it.” (citing Brown, 777 F.2d at 13)). Defendants can meet their burden of pleading and proving a failure to exhaust at the motion-to-dismiss stage by" }, { "docid": "3012070", "title": "", "text": "[it] was liable for any alleged misconduct.” (Mot. at 4). The court will address this argument, as well as Defendant’s exhaustion of administrative remedies argument (see id. at 6-12), and its FMLA statute of limitations argument (see id. at 12-17), under the Rule 12(b)(6) framework. 1. Exhaustion Of Administrative Remedies The EEOC has promulgated detailed regulations establishing administrative procedures for the resolution of employment discrimination claims against federal agencies. A Title VII plaintiff must timely exhaust these administrative procedures before filing suit in federal court, although the limits are not jurisdictional and “are subject to equitable tolling, estoppel, and waiver.” Bowden v. U.S., 106 F.3d 433, 437 (D.C.Cir.1997). The D.C. Circuit has summarized the procedures applicable to Title VII claims as follows: Under Title VII, employees who believe they have been discriminated against must first consult an Equal Employment Opportunity (EEO) Counselor within 45 days of the alleged discriminatory acts. Should the employee and the Counselor fad to resolve the discrimination claim within 30 days, the Counselor sends the employee a notice explaining the administrative complaint procedure. The employee then has 15 days to file an individual and/or class complaint with the employing agency. Upon receipt of a final agency .decision — known as a “FAD” — disposing of the administrative '•complaints, the employee has either 30 days to appeal, to the Equal Employment Opportunity- Commission (EEOC), or 90 days to file', suit in federal court. In re James, 444 F.3d 643, 644 (D.C.Cir.2006) citations omitted). “Exhaustion is required in order to give federal agencies an opportunity to handle matters internally whenever possible and to ensure that the federal courts are burdened only when reasonably necessary.” Brown v. Marsh, 777 F.2d 8, 14 (D.C.Cir.1985). Defendant argues that because Plaintiff first contacted an EEO counselor on January 10, 2013, any “discrete act” alleged in the Complaint is time-barred if it occurred more than 45 days prior to that date — ie., before November 26, 2012. (Mot. at 8). Thus,' Defendant argues, Plaintiffs allegations regarding the following are not actionable here: i. the 2009 RIF, McLlwain’s subsequent denial of Plaintiffs applications for" }, { "docid": "11959192", "title": "", "text": "MEMORANDUM OPINION AND ORDER RANDOLPH D. MOSS, United States District Judge Proceeding pro se, Plaintiff Theodor McGary brings this action against the Director of the Peace Corps, another Peace Corps employee (who served as one of Plaintiffs supervisors), and the former Chairwoman of the Equal Employment Opportunity Commission (“EEOC” or “Commission”). The case arises in an unusual posture. The EEOC has already concluded that the Peace Corps unlawfully retaliated against Plaintiff for complaining that he was the victim of racial discrimination, and it has granted him substantial relief — in excess of $400,000 for backpay and interest. Plaintiff, understandably, does not challenge the EEOC’s liability determination. Rather, his principal claim is that the relief the Commission awarded failed to make him whole. This Court’s authority, however, does not divide so neatly — a plaintiff may not challenge an EEOC damage determination without re-litigating the question of liability. See Scott v. Johanns, 409 F.3d 466, 469 (D.C.Cir.2005). As a result, Plaintiffs only options with respect to his principal claim are to accept the Commission’s decision and, if necessary, seek the Court’s assistance in enforcing that decision, or to reject that decision and start from scratch. Id. As Plaintiff explained at oral argument, it is his intention to follow the latter course. Before Plaintiff can do so, however, he must clear a number of hurdles raised in Defendants’ motion to dismiss. See Dkt. 14. Defendants’ motion to dismiss raises five defenses. The motion first argues that Plaintiff did not bring his claim within the six-year default statute of limitations for claims against the United States, 28 U.S.C. § 2101(a). Defendants now concede, however, that this argument is foreclosed by the D.C. Circuit’s intervening decision in Howard v. Pritzker, 775 F.3d 430, 438 (D.C.Cir.2015), and they have thus withdrawn the defense. Dkt. 21. Second, Defendants contend that Plaintiff failed to file suit within 90 days of when he received notice of the EEOC’s final determination, as required by statute. As explained below, that defense turns on issues of fact and, accordingly, cannot be decided on a motion to dismiss. Third, Defendants maintain that" }, { "docid": "23645790", "title": "", "text": "was filed more than 90 days after the notice letter was delivered to the residence of the complainant and received there by his wife. Mouriz insisted that the 90 days should not begin when the letter was delivered to his home but should begin when it came to his personal attention, and was read by him several days later. The court rejected this subjective, open-ended extension of the filing period and held that the time began when the letter was delivered to Mouriz’s residence. In Huckeby we stated that the right to bring a Title VII action was extinguished after the lapse of 90 days from the right-to-sue notification to the complainant’s lawyer. The discussion in Huckeby is interesting, but again it is merely dictum, for the issue before the court was not whether the notice to the lawyer triggered the running of the 90 day period. The issue in Huckeby was whether, after the 90 day period had ended, one’s complaint could be salvaged by intervening in another complainant’s suit. We held that the court lacked jurisdiction to consider the appeal as no final judgment had been entered, and did not reach even the issue sought to be reviewed. We are aware of other decisions under Title VII, particularly those applying 42 U.S.C. § 2000e-16, the section involving discrimination in federal employment. That section provides for a 30 day period for the filing of suit. Other circuits have held that this 30 day period is triggered by receipt of notice by the complainant, but not by the complainant’s attorney. See Rea v. Middendorf, 587 F.2d 4 (6th Cir. 1978); Craig v. Department of Health, Education and Welfare, 581 F.2d 189 (8th Cir. 1978); and Bell v. Brown, 557 F.2d 849 (D.C.Cir.1977) (rationale relied upon by district judge as lending support to a similar interpretation of the section now before us). These cases were, however, primarily premised upon the principle that great deference should be given to the interpretations of statutory language by the Civil Service Commission, the agency charged with the administration of those provisions. Those interpretations require the" }, { "docid": "11959202", "title": "", "text": "legal conclusions as true. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006). Rather, the question for the court is whether and the factual allegations “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). III. DISCUSSION A. The Six-Year Statute of Limitations in 28 U.S.C. § 2401(a) Defendants’ first argument in their motion to dismiss, Dkt. 14, asserted that the six-year statute of limitations in 28 U.S.C. § 2401(a) barred Plaintiff from pursuing his claim. See Dkt. 14-1 at 5-6. While Defendants’ motion was pending, however, the D.C. Circuit issued its decision in Howard, 775 F.3d at 436, which held that § 2401(a) is inapplicable to Title VII. The government promptly informed the Court of this intervening authority and withdrew that basis for its motion to dismiss. Dkt. 21. The Court, therefore, need not address Defendants’ first contention. B. The 90-day Statute of Limitations in 42 U.S.C. § 2000e-16(c) Defendants, however, continue to press an alternative timeliness objection to Plaintiffs suit. In particular, Title VII permits an aggrieved federal employee or applicant for federal employment to sue his employer, but only “[w]ithin 90 days of receipt of notice of final agency action taken by [the] ... [federal] agency ... or by the [EEOC] upon an appeal from a decision or order of such ... agency ... on a complaint of discrimination based on race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-16(c). Here, there is no question that the EEOC issued its final decision on April 26, 2013, see Dkt. 14-2, and that Plaintiff filed his complaint with this Court on August 6, 2013, see Dkt. 1. That represents a gap of 102 days between issuance of the final decision and initiation of Plaintiffs lawsuit. Defendants recognize, however, that the statutory clock runs from “receipt of notice” of the EEOC’s decision and not from the date of issuance. Defendants posit that there is a presumption that a complainant will receive notice within three to five days from issuance, and that," }, { "docid": "2263001", "title": "", "text": "the claimant or by the attorney representing him in the Title VII action. ” Jones v. Madison Service Corp., 744 F.2d 1309, 1312 (7th Cir.1984) (emphasis added); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 532 n. 11 (7th Cir.1993). Threadgill’s contention that the 90-day period should have begun to run only after his attorney received the notice is a misreading of the precedent. Two types of receipt of a right-to-sue notice can start running the 90-day limitation period, and each does so equally well: actual receipt by the plaintiff, and actual receipt by the plaintiffs attorney (as such receipt constitutes constructive receipt by the plaintiff). See Jones, 744 F.2d at 1312. Both methods of receipt focus on notice to the plaintiff. The attorney’s receipt is pertinent only because he is an agent of the plaintiff. If, as in the instant case, the plaintiff actually receives notice from the EEOC, the attorney’s receipt is irrelevant; it simply is not required for the 90-day period to begin running. Threadgill takes the holdings of Supreme Court and Seventh Circuit case law, which state that the 90-day period begins upon notice to the attorney or to the plaintiff, and reads them to state that only upon notice to the attorney does the clock begin to tick. Nowhere in our case law is such a result suggested. B. Threadgill next contends that the principle of equitable tolling should be applied to excuse his failure to comply with the 90-day limitations period. Equitable tolling, however, is reserved for situations in which the claimant “has made a good faith error (e.g., brought suit in the wrong court) or has been prevented in some extraordinary way from filing his complaint in time.” Jones, 744 F.2d at 1314. Threadgill did not make a good faith error such as filing in the wrong court. He did not act at all, even though the right-to-sue notice clearly stated that he must file within 90 days. The courts have allowed" }, { "docid": "3960902", "title": "", "text": "the law firm. The date of the receipt of the letter by the attorney’s secretary is the crucial date.” We disagree. In Bell v. Brown, 181 U.S.App.D.C. 226, 557 F.2d 849 (1977), the Court addressed the question as to the meaning of “receipt of notice” under 42 U.S.C. § 2000e-16(c). On August 28, 1974, the Civil Service Commission mailed two letters in an attempt to inform Bell that he had been denied administrative relief and that he had thirty days from receipt of notice in which to bring an action in federal district court. One letter was sent to Richard W. Cass, an attorney with the firm which had previously represented Bell. The other letter was sent to Bell at his house; but because he was on vacation until September 3, the date of the letter’s arrival could not be ascertained. On October 1, 1974, Bell filed a pro se complaint in the District Court. The action was dismissed as untimely and he appealed. The Court of Appeals reversed, noting initially that “[sjince the ‘receipt of notice,’ and not its mailing, is expressly made the event inaugurating the 30-day period, plainly it begins to run only from the time the notice comes into the recipient’s hands.” Id. 181 U.S.App.D.C. at 229, 557 F.2d at 852 (footnote omitted). The Court then considered whether receipt by Bell’s attorney was equivalent to receipt by Bell himself. Noting the absence of any express congressional intent, the Court stated: [WJhere congressional purpose is unclear, courts have traditionally resolved ambiguities in remedial statutes in favor of those whom the legislation was designed to protect. We have heretofore recognized ‘that Title VII is remedial in character and should be liberally construed to achieve its purposes’; ‘for this reason,’ we have observed, ‘courts confronted with procedural ambiguities in the statutory framework have, with virtual unanimity, resolved them in favor of the complaining party.’ ‘That approach,’ we have added, ‘reflects not only the manifest importance of Title VII rights to complaining parties, but also the broad national commitment to eliminating such discrimination and the importance of private suits in" }, { "docid": "5003021", "title": "", "text": "occurred on the date when the “offers of employment were formally extended”). Under the text of the regulation, it does not matter whether the employee received notice of the non-selection, or knew that another person was selected. See Jakubiak, 101 F.3d at 26-27 (rejecting such an argument because “the regulation explicitly provides that the 45-day clock runs from the ‘effective date of the action’ ” (quoting 29 C.F.R. § 1614.105(a)(1))). It is certainly not sufficient for the plaintiff to notify an EEO counselor within 45 days of “apprehending] that an adverse employment decision was motivated by a discriminatory purpose.” Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992); accord Miller v. Hersman, 594 F.3d 8, 12 (D.C. Cir. 2010) (citing Pacheco favorably in the context of the 45-day rule). Courts are open to tolling- that timeframe until when the complainant had reason to know the identity of the person receiving the promotion. See, e.g., Hairston, 664 F.Supp.2d at 114. However, such equitable tolling only applies when “despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim,” which does not include details about the decision-making process. Pacheco, 966 F.2d at 906-07 (emphasis added) (also noting that “[t]he doctrine of equitable tolling has it limits,” including “[t]he requirement of diligent inquiry [that] imposes an affirmative duty on the potential plaintiff’). The party seeking equitable tolling bears “the burden of pleading and proving in the district court ‘equitable reasons’ for noncompliance with the [forty-five] day requirement.” Bayer v. U.S. Dep’t of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992) (quoting Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982)). As shown by Plaintiffs inability to cite any court case, see Pl.’s Opp’n to Mot. Dismiss at 17, courts have not created a sui generis tolling rule for plaintiffs on active military duty. However, the EEOC has, under certain circumstances, tolled the relevant administrative deadlines for complainants on active duty. See, e.g., Clark v. Chertoff, EEOC Appeal No. 0120065245, 2008 WL 2951641. Regardless of whether such a rule applies in the federal courts," }, { "docid": "5003006", "title": "", "text": "Id. Instead, plaintiffs must “nudge[ ] their claims across the line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider the facts alleged in the complaint, documents at tached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiffs complaint necessarily relies even if the document is produced not by the parties.” Busby v. Capital One, N.A., 932 F.Supp.2d 114, 133-34 (D.D.C. 2013) (internal citations and quotation marks omitted). “[A] document need not be mentioned by name to be considered ‘referred to’ or ‘incorporated by reference’ into the complaint.” Strumsky v. Wash. Post Co., 842 F.Supp.2d 215, 218 (D.D.C. 2012) (internal citation omitted). Of course, courts may also take “judicial notice of facts on the public record ... to avoid unnecessary proceedings when an undisputed fact on the public record makes it clear that the plaintiff does not state a claim upon which relief could be granted.” See Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting)). Failure to exhaust administrative remedies is an affirmative defense. See Mondy v. Sec’y of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., concurring) (citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it.” (citing Brown, 777 F.2d at 13)). Defendants can meet their burden of pleading and proving a failure to exhaust at the motion-to-dismiss stage by using the pleadings and undisputed documents in the record. See Bowden, 106 F.3d at 437. B. Conversion into a Motion for Summary Judgment Ms. Vasser claims that because Defendant’s exhaustion arguments are predicated upon materials outside the Second Amended Complaint, the Court must treat the motion" } ]

[ { "docid": "9530625", "title": "", "text": "adopted by the Appeals Council is supported by substantial evidence in the record, we affirm the judgment of the district court. AFFIRMED. . We recently have reaffirmed this sequential five-step inquiry in Ray v. Bowen, 843 F.2d 998 (7th Cir.1988): (1) Is the claimant presently unemployed? (2) Is the claimant's impairment \"severe”? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? Id. at 1001. “An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.\" Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir.1985); accord Veal v. Bowen, 833 F.2d 693, 695 n. 2 (7th Cir.1987); Lauer v. Bowen, 818 F.2d 636, 638 (7th Cir.1987): Bauzo v. Bowen, 803 F.2d 917, 920 n. 1 (7th Cir.1986). . Mrs. Arbogast could alleviate her double vision problem by wearing an eyepatch. However, it is her contention that covering one eye makes her other eye very susceptible to tearing when exposed to beauty salon chemicals. . The two factual findings set forth by the AU were as follows: 6. The claimant’s past relevant work as receptionist, and the job of saleslady, do not require the performance of work-related activities precluded by the above limitation(s) (20 CFR 404.1565). 7. The claimant's impairment does not prevent the claimant from performing her past relevant work, or the job of saleslady. R. 19 at 162. . The Appeals Council then modified these findings in the following manner: The Appeals Council hereby modifies Finding Number 6 to state that the claimant’s past relevant work as a receptionist and shampoo person in a beauty salon did not require the performance of work-related activities precluded by the limitations cited. Finding Number 7 is modified to state that the claimant’s impairment does not" } ]

[ { "docid": "23006267", "title": "", "text": "error or if the denial of benefits is unsupported by substantial evidence. Wainwright v. Secretary of Health & Human Servs., 939 F.2d 680, 682 (9th Cir.1991) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir.1990)). Claims of disability are evaluated according to a five-step procedure. 20 C.F.R. §§ 404.1520 et seq., 416.920 et seq. (1993). Ramirez disputes the findings the ALJ made at the third step of the five-step process. That step determines whether a claimant is disabled by comparing the claimant’s impairment to impairments listed in an appendix to the regulations (“listed diagnoses”). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 20 C.F.R. § 416.925. Each listed diagnosis consists of clinical findings listed under paragraph A (“paragraph A criteria”) and functional limitations listed under paragraph B (“paragraph B criteria”). Together, the criteria define the severity of the impairment. Each listed diagnosis requires that a claimant exhibit a set number of both paragraph A and paragraph B criteria in order to be found disabled. The criteria may themselves require the claimant to exhibit a set number of characteristics. If a claimant’s impairment either meets the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir.1990) (citations omitted), he is conclusively presumed to be disabled, Baxter v. Sullivan, 923 F.2d at 1395; 20 C.F.R. §§ 404.1520(d), 416.920(d). See generally Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2290-92, 96 L.Ed.2d 119 (1987). II. A. The dispute in this case concerns listed diagnosis 12.04 (affective disorder) and 12.08 (personality disorder). The required level of severity for diagnosis 12.04 is met when the claimant’s impairment meets at least one paragraph A criterion and at least two paragraph B criteria. 20 C.F.R. Pt. 404, Subpt. P, App. 1 at 408. The required level of severity for diagnosis 12.08 is met when the claimant’s impairment reflects at least one paragraph A criterion and at least three paragraph B criteria. Id. at 409. The list of paragraph B criteria is the same for both diagnoses, although the list" }, { "docid": "22288443", "title": "", "text": "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months....” 42 U.S.C. § 423(d)(1)(A); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.1992). The Act further provides that an individual is disabled “only if his physical and mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 423(d)(2)(A). The Secretary promulgated regulations establishing a five step sequential evaluation process for deciding whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The first two steps involve threshold determinations that the claimant is not presently engaged in substantial gainful activity and has an impairment or combination of impairments which significantly limits his physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520, 404.1520(b)-(c), 416.920, 416.920(b)-(c). In the third step, the medical evidence of the claimant’s impairment(s) is compared to a list of impairments presumed severe enough to preclude any gainful activity. See 20 C.F.R. pt. 404, subpt. P, App. 1 (pt. A) (1999). If the claimant’s impairment matches or is equal to one of the listed impairments, he qualifies for benefits without further inquiry. See 20 C.F.R. §§ 404.1520(d), 416.920(d). If the person cannot qualify under the listings, the evaluation proceeds to the fourth and fifth steps. At these steps, analysis is made of whether the person can do his own past work or any other work that exists in the national economy, in view of his" }, { "docid": "22968691", "title": "", "text": "141, 145 (10th Cir.1985)). Thus, if the claimant establishes a disability, the Secretary’s denial of disability benefits, based on the claimant’s ability to do other work activity for which jobs exist in the national economy, must be supported by substantial evidence. The Secretary has established a five-step process for evaluating a disability claim. See Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 2290-95, 96 L.Ed.2d 119 (1987). The five steps, as set forth in Reyes v. Bowen, 845 F.2d at 243, proceed as follows: (1) A person who is working is not disabled. 20 C.F.R. § 416.920(b). (2) A person who does not have an impairment or combination of impairments severe enough to limit his ability to do basic work activities is not disabled. 20 C.F.R. § 416.920(c). (3) A person whose impairment meets or equals one of the impairments listed in the “Listing of Impairments,” 20 C.F.R. § 404, subpt. P, app. 1, is conclusively presumed to be disabled. 20 C.F.R. § 416.920(d). (4) A person who is able to perform work he has done in the past is not disabled. 20 C.F.R. § 416.920(e). (5) A person whose impairment precludes performance of past work is disabled unless the Secretary demonstrates that the person can perform other work available in the national economy. Factors to be considered are age, education, past work experience, and residual functional capacity. 20 C.F.R. § 416.920(f). If at any point in the process the Secretary finds that a person is disabled or not disabled, the review ends. Reyes, 845 F.2d at 243; Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir.1987); 20 C.F.R. § 416.920. Neither party contests the AU’s step one finding that Mr. Gossett is not substantially gainfully employed, nor do they dispute the step two finding that he has a severe impairment. Mr. Gossett does not claim that his impairment is the same as or medically equivalent to an impairment described in the “Listing of Impairments,” thus rendering him per se disabled. The AU’s step four finding that Mr. Gossett cannot return to his former substantial gainful employment, which is" }, { "docid": "12671567", "title": "", "text": "for DIB and SSI benefits, a claimant must prove he is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 432(d)(1)(A), 1382c(a)(3)(A). The Commissioner of Social Security uses a five-step sequential analysis to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d 119. The first two steps involve threshold determinations as to whether a claimant is not presently working and has an impairment which is of the required duration and which significantly limits his ability to work. 20 C.F.R. §§ 404.1520(a)(c), 416.920(a)-(c). In the third step, evidence of the claimant’s impairments is compared to a list of impairments presumed severe enough to preclude any gainful work. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If an impairment meets or equals one of the listed impairments, the claimant qualifies for benefits without further inquiry. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant cannot qualify under the listed impairments, the analysis proceeds to the fourth and fifth steps. In the fourth step, the inquiry is whether the claimant’s residual functional capacity (RFC) will allow the claimant to pursue his past work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If a claimant’s impairment precludes the performance of his past work, the claimant’s RFC, age, education, and past work experience are considered in the fifth step to determine if other work exists that would accommodate the claimant. 20 C.F.R. §§ 404.1520(f), 416.920(f). In an opinion issued on May 24, 1995, the ALJ found that Maggard satisfied the first two steps of the five-part analysis, but that Maggard’s impairments did not meet or equal the listing of impairments for which benefits are presumed in the third step of the analysis. Proceeding to the fourth step, the ALJ found that Maggard’s RFC allowed him to perform simple unskilled work in a low" }, { "docid": "10475993", "title": "", "text": "checker. Tr. 30. Finally, the ALJ found that plaintiff had not been under a “disability,” as defined in the Social Security Act, at any time from August 24, 1985 through July 15, 1992, the date of his decision. Id. STANDARD OF REVIEW A claimant is disabled if unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a. continuous period of not, less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir.1991). The claimant bears the burden of proving disability. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989). First, the Secretary determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two the Secretary determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41, 107 S.Ct. at 2291; see §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled. In step three the Secretary determines whether the impairment meets or equals “one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity.” Id.; see 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Secretary proceeds to step four. Yuckert, 482 U.S. at 141, 107 S.Ct. at 2291. In step four the Secretary determines whether the claimant can still perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, she is not disabled. If she cannot perform past relevant work, the burden shifts to the Secretary. In step five, the Secretary must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42, 107 S.Ct. at 2291-92; see 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Secretary meets her burden and proves the" }, { "docid": "22301461", "title": "", "text": "is the claimant presently unemployed; 2) is the claimant’s impairment or combination of impairments severe; 3) does the impairment meet or exceed any of the list of specific impairments (the grid) that the Secretary acknowledges to be so severe as to preclude substantial gainful activity; 4) if the impairment has not been listed by the Secretary as conclusively disabling, is the claimant unable to perform his or her former occupation; and 5) if the claimant cannot perform the past occupation, is the claimant unable to perform other work in the national economy in light of his or her age, education and work experience. A negative conclusion at any step (except for step three) precludes a finding of disability. An affirmative answer at steps one, two or four leads to the next step. An affirmative answer at steps three or five results in a finding of disability. 20 C.F.R. § 404.1520 (1991); Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2290-92, 96 L.Ed.2d 119 (1987); Arbogast, 860 F.2d at 1403 n. 1. The claimant bears the burden of proof in steps one through four. If that burden is met, the burden shifts to the Secretary to prove that the claimant cannot perform other work in the economy. Ray v. Bowen, 843 F.2d 998 (7th Cir.1988). The Council reviewed the medical evidence to make its findings. In those findings, the Council briefly stated that Mr. Young was not disabled under each step of the inquiry. The Council also concluded that during the period of claimed disability Mr. Young could perform work as a shipping and receiving clerk, as a scheduler or as a checker. Mr. Young raises several arguments to refute these conclusions. A. Organic Mental Disorder. Mr. Young claims to suffer from an organic mental disorder as defined in the regulations. 20 C.F.R. Part 404, Subpart P, Appendix 1, 12.02 (1991). The Council disagreed. To reach its conclusion, the Council performed a multi-level analysis. First, it determined that Mr. Young suffers from a severe mental impairment. 20 C.F.R. § 404.1520a(c)(l) (1991). Next, the Council examined the mental impairments that," }, { "docid": "7034218", "title": "", "text": "in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. § 423(d)(2)(A). The claimant has the burden of proving a disability that prevents him from engaging in his prior work for a continuous period of twelve months. Trimiar, 966 F.2d at 1329. The burden then shifts to the Commissioner to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir.1989). The Commissioner satisfies this burden if substantial evidence supports it. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.1993). A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). This process comes to an end if at any point the Commissioner determines the claimant is disabled or not. Gossett, 862 F.2d at 805. Step one is whether the claimant is currently engaged in substantial gainful activity. If not, the fact finder in step two decides whether “the claimant has a medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 141, 107 S.Ct. 2287. Step three entails looking at whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. If no equivalency, step four requires the claimant to show that because of the impairment he is unable to perform his past work. The final step is to determine whether the claimant has the residual functional capacity (“RFC”) to perform other work available in the national economy, considering such additional factors as age, education, and past work experience. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). ALJ’S FINDINGS In her order of June 27, 1996, the ALJ made the following findings: 1. Claimant met the special earnings requirements of the Act on February 2, 1992, the date claimant stated he became unable to work, and continues to do so through the date of this decision. 2. Claimant" }, { "docid": "11008226", "title": "", "text": "work which exists in the national economy....” 42 U.S.C. § 423(d)(2)(A). Claimant has the burden of proving a disability that prevents him from engaging in his prior work for a continuous period of twelve months. The burden then shifts to the Secretary to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir.1989). The Secretary satisfies this burden if substantial evidence supports it. For evaluating a claim of disability, the Secretary has developed a five-step se quential process. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2289, 96 L.Ed.2d 119 (1987). Step one is whether the claimant is currently engaged in substantial gainful activity. If not, the fact finder next considers whether “the claimant has a medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 141, 107 S.Ct. at 2291. Step three entails determining whether the impairment is equivalent to one of a number of impairments listed in the “Listing of Impairments,” 20 C.F.R. Part 404, subpt. p, App. 1 which the Secretary acknowledges are so severe as to preclude substantial gainful activity, 20 C.F.R. § 416.920(d). If no equivalency, the claimant must show that because of the impairment he is unable to perform his past work. 20 C.F.R. § 416.920(e). The final step is to determine whether the claimant has the residual functional capacity (RFC) to perform other work available in the national economy, considering such additional factors as age, education, and past work experience. 20 C.F.R. § 416.920(f). This process comes to an end if at any point the Secretary determines the claimant is disabled or not. Gos-sett, 862 F.2d at 805; 20 C.F.R. § 416.-920(a). In his order of February 17, 1989, the AU found: 1. The claimant met the disability insured status requirements of the Act on January 6, 1987, the date the claimant stated she became unable to work, and continues to meet them at least through the date of this decision. 2. The claimant has not engaged" }, { "docid": "12671566", "title": "", "text": "CUMMINGS, Circuit Judge. Ronald Maggard suffers from alcoholism, drug addiction, back pain, foot pain, and bleeding ulcers. Maggard last performed substantial gainful activity in 1986, when he worked as a janitor and maintenance man. He has worked in the past as a deckhand on a riverboat, food preparer, and assembly line worker. In July 1993, Maggard applied for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1382, 1382c. A hearing was held before an Administrative Law Judge (ALJ), who denied Maggard’s claim. Thereafter the Appeals Council of the Social Security Administration denied Maggard’s request for review. Maggard then appealed to federal district court under 42 U.S.C. § 406(g). Pursuant to 28 U.S.C. § 636(c), the parties consented to final entry of judgment by a United States Magistrate Judge. Magistrate Judge Gerald B. Cohn ultimately denied Maggard’s appeal. Maggard then took an appeal to this Court. 28 U.S.C. § 1291. To be eligible for DIB and SSI benefits, a claimant must prove he is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 432(d)(1)(A), 1382c(a)(3)(A). The Commissioner of Social Security uses a five-step sequential analysis to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d 119. The first two steps involve threshold determinations as to whether a claimant is not presently working and has an impairment which is of the required duration and which significantly limits his ability to work. 20 C.F.R. §§ 404.1520(a)(c), 416.920(a)-(c). In the third step, evidence of the claimant’s impairments is compared to a list of impairments presumed severe enough to preclude any gainful work. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If an impairment meets or" }, { "docid": "9491594", "title": "", "text": "the Commissioner’s conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.1988). Even if the reviewing court would have decided the case differently, it must give deference to the ALJ and affirm the Commissioner’s decision if it is supported by substantial evidence. See Monsour, 806 F.2d at 1190-91. IV. DISCUSSION A. Disability Determination Process Title 11 of the Social Security Act, 42 U.S.C. § 423(a)(1)(D), “provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability.” Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). In order to quality for DIB, the claimant must establish that he or she was disabled prior to the date he or she was last insured. See 20 C.F.R. § 404.131; Matullo, 926 F.2d at 244. A “disability” is defined as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. See 42 U.S.C. §§ 423(d)(1)(A), 1382(c)(a)(3). A claimant is disabled “only if her physical or mental impairment or impairments are of such severity that she is not only unable to do her previous work but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). In determining whether a person is disabled, the Commissioner is required to perform a five-step sequential analysis. See 20 C.F.R. § 404.1520; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir.1999). If a finding of disability or non-disability can be made at any point in the sequential process, the Commissioner will not review the claim further. 20 C.F.R. § 404.1520(a)(4). At step one, the Commissioner must determine whether the claimant is engaged in any substantial gainful activity. See 20 C.F.R. §" }, { "docid": "23574602", "title": "", "text": "1520 (1990). At the first step, a claimant loses if he or she is engaged in “substantial gainful activity.” The second step determines whether the claimant suffers from a severe impairment. If the impairment is not severe, the claimant is not disabled. If the impairment is severe, the evaluation proceeds to step three. In step three, the severe impairment is compared to the impairments listed in an appendix to the regulations. See 20 C.F.R. pt. 404, subpt. P. App. 1 (1990). A claimant suffering from one of these listed impairments is presumed disabled, and no further inquiry is necessary. If the impairment is not among these listed impairments, step four determines whether the impairment prevents the claimant from performing his or her previous job. Claimants who can still perform their past work even with a severe impairment are not disabled. When claimants with severe unlisted impairments cannot perform théir past work, step five determines whether they are nevertheless able to perform other work in the national economy. This final step also takes into account the claimant’s age, education and work experience. See generally Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2290-92, 96 L.Ed.2d 119 (1987). It appears that the AU resolved Baxter’s claim at step four. The AU first determined that Baxter was not working and had not engaged in “substantial gainful activity” since January 31, 1982. The AU then merged steps two and three and concluded that Baxter’s impairment was severe but was not among the impairments listed in the appendix to the Secretary’s regulations: The medical evidence reveals that on or before June 30, 1982, the claimant was severely impaired as the result of a cervical strain, but she did not have an impairment or combination of impairments, listed in or medically to [sic] an impairment listed in Appendix 1, Subpart P, of the Secretary’s Regulations No. 4. Finding No. 5. Proceeding to step four, the AU then found that Baxter “retained the residual physical and mental abilities to return to her past relevant work as a floral designer through June 30, 1982.” Finding No." }, { "docid": "6422672", "title": "", "text": "required to drive an automobile and be on his feet approximately six hours per day. He was also required to carry approximately eighty pounds of demonstration equipment and literature. The claimant filed the first of three DIB applications on June 1, 1982, alleging that he had been disabled since April 11, 1981, due to hyperthyroidism. His second application was filed on January 23, 1985, alleging an onset date of April 12, 1981, due to hyperthyroidism and a spinal injury sustained in a 1984 automobile accident. Both applications were denied and Campbell did not seek further administrative review. The most recent DIB and SSI applications were filed on November 23, 1985, and allege disability due to hyperthyroidism, a spinal injury, neuropathy and a nervous disorder. The onset date was alleged to be May 21, 1981. The Secretary denied the applications initially and on reconsideration. Pursuant to Campbell’s request, an administrative hearing was convened on January 6, 1987, at which he was represented by counsel. The ALJ denied his applications on August 6, 1987, and the decision became the final decision of the Secretary. In order to qualify for disability benefits, a claimant must be “disabled.” The Act defines “disabled” as the “inability to engage in any substantia] gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A) & 1382e(a)(3)(A). Social Security regulations outline a five-step inquiry to be followed in determining whether a claimant is disabled. 20 C.F.R. § 416.920(a)-(f). The Secretary must determine in sequence: (1) whether the claimant is currently employed; (2) whether he has a severe impairment; (3) whether his impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform his past work; and (5) whether the claimant is capable of performing any work in the national economy. Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir.1992). Once the claimant has satisfied Steps One and Two, he will automatically" }, { "docid": "5185519", "title": "", "text": "expert, Dennis J. Elliot, also testified at the hearing. The ALJ issued an unfavorable decision on June 20, 2008. The Appeals Council denied plaintiffs request for review on December 17, 2009. Accordingly, the ALJ’s decision became the final decision of the agency. FACTUAL BACKGROUND Plaintiff was 32 years old at the time of the hearing. Plaintiff was placed in special education classes at an early age, and completed high school. Plaintiff attended Southwestern Oregon Community College and took basic adult education courses. Plaintiff has worked as a teacher’s aide, a courtesy clerk/grocery bagger, a deli clerk, a fast food worker, and as a laundress in a hospital. At the time of the hearing, plaintiff was working part-time at a grocery store. Plaintiff alleges disability due to asthma, attention deficit disorder, dyslexia, a developmental disorder, back pain, and severe eczema. THE ALJ’S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. § 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). The burden shifts to the Commissioner at step five to show that a significant number of jobs exist in the national economy that the claimant can perform. Yuckert, 482 U.S. at 141-42, 107 S.Ct. 2287. The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2010. A claimant seeking DIB benefits under Title II must establish disability on or prior to the last date insured. 42 U.S.C. § 416(i)(3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). At step one, the ALJ presumed for purposes of the decision that plaintiff has not engaged in substantial gainful activity since July 19, 2006, her amended alleged onset of disability. See 20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq. At step two, the ALJ found that plaintiff had the following severe impairments: asthma and a cognitive disorder with" }, { "docid": "16559459", "title": "", "text": "ALJ determined that Sienk-iewicz was not engaged in substantial gainful activity and that her impairments were “severe.” But he found at Step 3 that her impairments neither met nor exceeded the level of severity required by the listings. See 20 C.F.R. Part 404, Subpart P, App. 1. At Step 4, he determined that Sienkiewicz was unable to perform her past relevant work, but concluded at Step 5 that she could perform sedentary unskilled jobs existing in significant numbers in the regional economy. See Dixon, 270 F.3d at 1176; 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Accordingly, the ALJ found her not disabled. II. ANALYSIS We review an ALJ’s decision that an applicant is not disabled for substantial evidence. Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir.2003). We review the record as a whole, but do not reweigh evidence or substitute our judgment for that of the ALJ. Id. We begin with Sienkiewicz’s argument that the ALJ erred when he denied her DIB. This claim is easily resolved because Sienkiewicz presented no evidence at all addressing her medical condition prior to 1998. The ALJ found — and Sienkiewicz does not dispute — that her insured status for purposes of the disability insurance program ended in June 1995. See 42 U.S.C. § 423(a)(1)(A). Because Sienkiew-icz offered no evidence to show that she was disabled during the insured period, the ALJ did not err in denying her application for DIB. See Estok v. Apfel, 152 F.3d 636, 638 (7th Cir.1998). That leaves her claim for SSI benefits. An applicant who cannot establish that she was disabled during the insured period for DIB may still receive SSI benefits if she can establish that she is disabled and has limited means. 42 U.S.C. §§ 1381a, 1382; see also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir.1999) (discussing difference between DIB and SSI benefits). Sienkiewicz contends that the ALJ committed several errors at both Step 3 and Step 5 in finding her not disabled. Sienkiewicz argues generally that the ALJ failed at Step 3 to address whether the combination of her impairments— specifically the impact of" }, { "docid": "6541997", "title": "", "text": "59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)); Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.1989); Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981). Substantial evidence is “less than a preponderance, but must be such as a reasonable person would accept as adequate to support a conclusion.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.1986) (citations omitted). The Commissioner established a five (5) step sequential evaluation process in 20 C.F.R. §§ 404.1520, 416.920 (1995) to be used for determining whether a person is disabled within the meaning of the Social Security Act, 42 U.S.C.A. §§ 401-433, 1381-1383d. The first two (2) steps involve threshold determinations of whether the claimant is presently working and whether she has an impairment which meets the duration requirement and significantly limits her ability to work. See 20 C.F.R. §§ 404.1520(a)-(e); 416.909; 416.920(a)-(c) (1995). In the third step, the medical evidence of the claimant’s impairment is compared to a list (the “listings”) of impairments presumed severe enough to preclude any gainful work. See 20 C.F.R. Part 404, Sub-part P, App. 1 (Part A) (1995). If the claimant’s impairment matches or is “equal” to one (1) of the listed impairments, she qualifies for benefits without further inquiry. 20 C.F.R. §§ 404.1520(d); 416.920(d) (1995). If the claimant cannot qualify under the Listings, the analysis proceeds to the fourth and fifth steps. At these steps, the inquiry is whether the claimant can do her own past work or any other work that exists in the national economy in view of her age, education, and work experience. If the claimant cannot do her- past work or other work, she qualifies for benefits. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f) (1995); see also, Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2290-92, 96 L.Ed.2d 119 (1987). Application of these principles to the administrative record in this matter reveals that the Commissioner’s decision to deny plaintiff SSI benefits is not supported by substantial evidence because the ALJ’s opinion does not show a fair consideration of the evidence. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981); Kaelin v." }, { "docid": "5185520", "title": "", "text": "416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). The burden shifts to the Commissioner at step five to show that a significant number of jobs exist in the national economy that the claimant can perform. Yuckert, 482 U.S. at 141-42, 107 S.Ct. 2287. The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2010. A claimant seeking DIB benefits under Title II must establish disability on or prior to the last date insured. 42 U.S.C. § 416(i)(3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). At step one, the ALJ presumed for purposes of the decision that plaintiff has not engaged in substantial gainful activity since July 19, 2006, her amended alleged onset of disability. See 20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq. At step two, the ALJ found that plaintiff had the following severe impairments: asthma and a cognitive disorder with extremely low intellectual functioning. See 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, the ALJ found that plaintiffs impairments, or combination of impairments did not meet or medically equal a listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform a full range of work at all exertional levels with the following nonexertional limitations: she is unable to follow complex or detailed instructions; she is unable to perform multiple tasks simultaneously; she should receive job instructions by demonstration, but can utilize lists to help remember things; she is unable to tolerate temperatures above normal room temperature; she is unable to tolerate excessive humidity; she needs to avoid skin irritants such as chemicals or disinfectants; she needs to avoid smoke and fumes in excessive amounts. See 20 C.F.R. §§ 404.1527, 404.1529, 416.927, 416.929. At step four, the ALJ found plaintiff capable of performing her past relevant work (PRW) as a teacher’s aide II, courtesy elerk/bagger, and delicatessen cutter/slicer. See 20 C.F.R. §§" }, { "docid": "22732938", "title": "", "text": "abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” This statutory definition of disability was taken from Title II of the Social Security Act, 70 Stat. 815, as amended, 42 U. S. C. §423 et seq. (1982 ed. and Supp. V) (providing for payment of insurance benefits to disabled workers who have contributed to the Social Security Program). See §§ 423(d)(1)(A) and (d)(2)(A) (definitions of disability). Pursuant to his statutory authority to implement the SSI Program, the Secretary has promulgated regulations creating a five-step test to determine whether an adult claimant is disabled. See Bowen v. Yuckert, 482 U. S. 137, 140-142 (1987). The first two steps involve threshold determinations that the claimant is not presently working and has an impairment which is of the required duration and which significantly limits his ability to work. See 20 CFR § § 416.920(a) through (c) (1989). In the third step, the medical evidence of the claimant’s impairment is compared to a list of impairments presumed severe enough to preclude any gainful work. See 20 CFR pt. 404, subpt. P, App. 1 (pt. A) (1989). If the claimant’s impairment matches or is “equal” to one of the listed impairments, he qualifies for benefits without further inquiry. § 416.920(d). If the claimant cannot qualify under the listings, the analysis proceeds to the fourth and fifth steps. At these steps, the inquiry is whether the claimant can do his own past work or any other work that exists in the national economy, in view of his age, education, and work experience. If the claimant cannot do his past work or other work, he qualifies for benefits. §§ 416.920(e) and (f). The Secretary’s test for determining whether a child claimant is disabled is an abbreviated version of the adult test. A child qualifies for benefits if he “is not doing any substantial gainful activity,” § 416.924(a), if his impairment meets the duration requirement, § 416.924(b)(1), and if it matches or is medically equal to a listed impairment, §§416.924(b)(2) and (3). In evaluating a child’s claim, both the general listings and a special listing" }, { "docid": "22301460", "title": "", "text": "it is supported by substantial evidence. Key v. Sullivan, 925 F.2d 1056, 1061 (7th Cir.1991). The Secretary has delegated authority to make the final decision to the Council. Arbogast v. Bowen, 860 F.2d 1400, 1402 (7th Cir.1988). Thus, we review the factual findings of the Council, not those of the ALJ. Pitts v. Sullivan, 923 F.2d 561, 564 (7th Cir.1991). When reviewing those findings, we do not determine if the claimant is disabled, nor do we reweigh the evidence. Stuckey v. Sullivan, 881 F.2d 506, 508 (7th Cir.1989). However, when evaluating whether sub stantial evidence exists to support the decision, we consider the relevant evidence that a reasonable person might accept as adequate to support a conclusion, taking into account anything in the record that fairly detracts from its weight. Arbogast, 860 F.2d at 1403. Substantial evidence may be something less than the greater weight or preponderance of the evidence. Delgado v. Bowen, 782 F.2d 79, 83 (7th Cir.1986). When considering whether a claimant is eligible for benefits, the Secretary uses a five-step inquiry: 1) is the claimant presently unemployed; 2) is the claimant’s impairment or combination of impairments severe; 3) does the impairment meet or exceed any of the list of specific impairments (the grid) that the Secretary acknowledges to be so severe as to preclude substantial gainful activity; 4) if the impairment has not been listed by the Secretary as conclusively disabling, is the claimant unable to perform his or her former occupation; and 5) if the claimant cannot perform the past occupation, is the claimant unable to perform other work in the national economy in light of his or her age, education and work experience. A negative conclusion at any step (except for step three) precludes a finding of disability. An affirmative answer at steps one, two or four leads to the next step. An affirmative answer at steps three or five results in a finding of disability. 20 C.F.R. § 404.1520 (1991); Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2290-92, 96 L.Ed.2d 119 (1987); Arbogast, 860 F.2d at 1403 n. 1. The claimant" }, { "docid": "10475992", "title": "", "text": "a hostess in a restaurant. Tr. 338. She resigned two months later, citing constant pain. Tr. 22, 338. The Secretary deemed this an unsuccessful attempt at work. Tr. 22. A disability hearing was held on March 3, 1992, and a decision was rendered on July 15, 1992. THE ALPS DECISION The ALJ found plaintiff had not engaged in substantial gainful activity since August 24,1985, and that her insured status for Title II disability purposes expired on December 31, 1989. Tr. 29. The ALJ also found that the medical evidence established that plaintiff has severe impairments, but she did not have an impairment, or combination of impairments, listed in or equal to one -listed in Subpart P. Id. The ALJ found plaintiffs subjective complaints including pain not credible. Id. The ALJ discounted the opinions of Drs. Heilman, Stites, and Kjaer, each of whom had opined plaintiff was disabled, and found plaintiff was capable of performing her past relevant work as a receptionist. Id. The ALJ also found plaintiff capable of working as a clerk or food checker. Tr. 30. Finally, the ALJ found that plaintiff had not been under a “disability,” as defined in the Social Security Act, at any time from August 24, 1985 through July 15, 1992, the date of his decision. Id. STANDARD OF REVIEW A claimant is disabled if unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a. continuous period of not, less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir.1991). The claimant bears the burden of proving disability. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989). First, the Secretary determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two the Secretary determines whether the claimant has a" }, { "docid": "22153414", "title": "", "text": "LUCERO, Circuit Judge. Plaintiff Thomas Joel Allen appeals from a district court order affirming the denial of his application for disability benefits. The district court (adopting the magistrate judge’s findings and recommendations) effectively conceded that the administrative law judge (ALJ) erred in his analysis, but upheld the denial of benefits nonetheless by relying upon certain analytical revisions offered on judicial review. Affirming this post hoc effort to salvage the ALJ’s decision would require us to overstep our institutional role and usurp essential functions committed in the first instance to the administrative process. Because the ALJ’s decision cannot stand on its own erroneous rationale, we reverse and remand the case for further proceedings before the agency. Upon receiving an application for disability benefits, an ALJ is required to assess whether or not the claimant is disabled in a five-step, sequential analysis. This analysis evaluates whether (1) the claimant is presently engaged in substantial gainful activity, (2) the claimant has a medically severe impairment or impairments, (3) the impairment is equivalent to one of the impairments listed in the appendix of the relevant disability regulation, (4) the impairment prevents the claimant from performing his or her past work, and (5) the claimant possesses a residual functional capability (RFC) to perform other work in the national economy, considering his or her age, education, and work experience. 20 C.F.R. § 404.1520(a)(4) (2003); see also, Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir.1992); Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). In order to help evaluate the step five requirement, whether or not there are sufficient jobs in the economy that the claimant can perform given his or her age, education, and work experience, the Social Security Administration has created Medical-Vocational Guidelines, also known as “the grids.” See 20 C.F.R. § 404.1567; id. pt. 404, subpt. P, app. 2; Trimiar, 966 F.2d at 1332. Five degrees of residual functional capacity are outlined in the grids by general exertional level—sedentary, light, medium, heavy, and very heavy exertion. 20 C.F.R. § 404.1569a; Trimiar, 966 F.2d at 1332 n. 22. Residual functional capacity reflects “the maximum" } ]

[ { "docid": "18353777", "title": "", "text": "argued that the name change from “concentrated orange juice for manufacturing” to “frozen concentated orange juice” and “orange juice from concentrate” was significant to a finding of substantial transformation. The court agrees with Customs’ conclusion that these names, derived from the FDA’s standards of identity, “merely refer to the same product, orange juice, at different stages of production.” In any case, a change in the name of the product is the weakest evidence of a substantial transformation. See Uniroyal, Inc. v. United States, 3 CIT 220, 542 F.Supp. 1026 (1982), aff'd, 702 F.2d 1022 (Fed.Cir.1983) (fact that this imported product was called an “upper” and final product called a “shoe” did not affect the court’s finding of no substantial transformation); United States v. International Paint Co., 35 CCPA 87, 93-94, C.A.D. 376 (1948) (“Under some circumstances a change in name would be wholly unimportant and equally so is a lack of change in name under circumstances such as [in this drawback case].”). Customs also found that the fact that the imported concentrate is sold to producers whereas the retail product is sold to consumers does not constitute a sufficient change in character and use to render the concentrate substantially transformed. Plaintiffs rely on the Midwood decision, in which this court’s predecessor, the Customs Court, emphasized this transition from producers’ goods to consumers’ goods in finding that steel forgings are substantially transformed into flanges and fittings. Midwood Industries, Inc. v. United States, 64 Cust.Ct. 499, 507, 313 F.Supp. 951, 957, appeal dismissed, 57 CCPA 141 (1970). As noted by Customs, however, the signifi canee of this producers’ good-consumers' good transformation in marking cases is diminished in light of this court’s recent decision in Uniroyal, Inc. v. United States, 3 CIT 220, 542 F.Supp. 1026 (1982), aff'd, 702 F.2d 1022 (Fed.Cir.1983). In Uniroyal, the imported article was a leather shoe upper to which an outsole was attached in the United States. Although the upper is not a consumers’ good in that it cannot be worn as a shoe, the court found that there was no substantial transformation. Id. at 227, 542 F.Supp." } ]

[ { "docid": "18165109", "title": "", "text": "paint was subjected to a series of processes which removed the impurities, reduced its viscosity and made it commerically usable as an antifouling paint. The collector denied the claim for drawback on the ground that the product was neither “manufactured nor produced” in the United States with the use of imported merchandise. The Court of Customs and Patent Appeals affirmed the determination of this court sustaining the protest of the collector’s decision (18 Cust. Ct. 105, C.D. 1052 (1947)) and held that the exported product had in fact been manufactured in the United States from the imported paint on the ground that both the character and use of the paint had been changed. In the present case, however, the upper itself underwent no physical change whatever Nor was its intended use changed. It was manufactured by plaintiff in Indonesia to be attached to an outsole; it was imported and sold to Stride-Rite for that purpose; and Stride-Rite did no more than complete the contemplated process. Plaintiffs reliance on Midwood Industries is likewise misplaced. In that case, rough steel forgings were imported into the United States and then subjected to several machining processes by the importer-manufacturer to convert them into finished flanges and fittings. The machining processes included boring, facing, spot facing, drilling, tapering, threading, bevelling, and heating and compressing. The court held that such processes resulted in a substantial transformation of the forgings so that the domestic manufacturer was determined to be the ultimate purchaser and country of origin marking of the individual flanges was therefore not necessary. In the present case, by contrast, the complex manufacturing processes occurred in Indonesia where the imported uppers were produced. However, in the United States only a minor assembly process takes place, namely, attaching the outsole to the upper. Grafton Spools, the last case relied on by plaintiff, is also distinguishable. There empty typewriter ribbon spools were imported into the United States and sold to manufacturers of ribbons and business machines which wound the ribbons on the spools. The court held that the manufacturers were the ultimate purchasers for two reasons: First, the" }, { "docid": "114323", "title": "", "text": "above definition of manufacture is a restrictive one, C.S.D. 82-67, 16 Cust.Bull. 801 (1982), courts have been reluctant to lay down specific definitions in this area of the law other than to discuss the particular facts of cases under the particular tariff provisions involved. See, e.g., Roland Freres, Inc. v. United States, 23 CCPA 81 (1935); United States v. Samuel Dunkel & Co., Inc., supra. We, therefore, cannot agree with the government that the trial court applied an incorrect legal standard when it concluded that the merchandise was a “product of” Hong Kong because the processes performed in Hong Kong changed the character, appearance, identity, and use of the merchandise from a bolt of woven fabric into a pillowcase. The government also argues that the trial court erred when it failed to utilize the “substantially transformed” test as developed under other areas of customs law in determining whether the imported pillowcases were products of China or Hong Kong. Although we decline to advance a definition of this term for all purposes, particularly because the implementing regulations under various tariff provisions define the term differently, it is clear that a “substantial transformation” occurs when as a result of a process an article emerges, having a distinctive name, character or use, in essence the definition of manufacture quoted above. See, e.g., Uniroyal, Inc. v. United States, 3 C.I.T. 220, 542 F.Supp. 1026 (1982), aff'd per curiam 702 F.2d 1022 (Fed.Cir.1983); Texas Instruments, Inc. v. United States, 681 F.2d 778 (CCPA 1982); Midwood Industries, Inc. v. United States, 64 Cust.Ct. 499 (1970). Again, it is difficult to perceive the difference between this test and that used by the trial court, that there was a change in the appearance, character, identity and use of the involved merchandise. Moreover, the trial court specifically concluded that the merchandise was substantially transformed in Hong Kong. The government challenges this conclusion on the ground that in order for there to be “a substantial transformation” of the merchandise, the processes performed in Hong Kong must have changed the article into one with a new tariff identity. The government argues" }, { "docid": "9592624", "title": "", "text": "defendant asserts “[j]ust because pipe is coated for protection from the elements does not change its fundamental purpose, character, or use.” (Def.’s Resp. to Pls.’ Comm, on Remand Results (“Def.’s Br.”) at 5.) The Court remains unpersuaded by defendant’s assertions that the record compiled in this matter contains substantial evidence supporting the Secretary’s determination that Shaw Pipe’s Highspire pipe coating operation did not “create or manufacture' a tangible commodity, or transform it into a new and different article.” Nagy, 6 CIT at 145, 571 F.Supp. at 1264. The Department’s determination that coated and uncoated pipes are “not likely” to be used interchangeably in pipeline construction, S.A.R. at 12, suggests to the Court that coated and uncoated pipe have different properties or characteristics which make one type of pipe preferable to the other in certain applications. As noted in Pemberton v. Marshall, 639 F.2d 798, 800 (D.C.Cir.1981), an important consideration in evaluating whether an item is transformed into a new and different article is whether a “new [product] is entered into the stream of commerce.” The Court believes the Department’s statement that coated and uncoated pipe are “not likely” to be used interchangeably in pipeline construction suggests the two types of pipe are different products and thus suggests plaintiffs did cause a new product, to be entered into the stream of commerce. These observations contradict Labor’s determination that Shaw Pipe’s Highspire operation did not “create or manufacture a tangible commodity, or transform it into a new and different article.” Nagy, 6 CIT at 145, 571 F.Supp. at 1264. These considerations would also seem to raise questions about the accuracy of defendant’s statement that the “fundamental purpose, character, [and] use” of coated and uncoated pipe are identical. (Def.’s Br. at 5.) While the utilization of both coated and un-coated pipe in pipeline construction suggests the two types of pipe have a similar fundamental purpose, the Department’s determination that coated and uncoated pipe are “not likely” to be used interchangeably suggests differences in then- character and use which appear to contradict defendant’s argument. Additionally, the Court is not persuaded by defendant’s application of" }, { "docid": "18353776", "title": "", "text": "The outermost containers of the imported articles shall be marked in accord with this part. The Customs’ ruling at issue involved manufacturing concentrate processed from oranges grown in foreign countries. This manufacturing concentrate is then blended with domestic concentrate. Ratios of 50/50 or 30/70 (foreign/domestic) were represented to be “common.” Customs ruled that for purposes of country, of origin marking, the manufacturing concentrate is not “substantially transformed” after undergoing the further processing in the United States. Under Customs’ ruling, retail packages of frozen concentrated orange juice and reconstituted orange juice must be marked to indicate that the products contain foreign concentrate. This “name, character, or use” test was applied by Customs in finding that no substantial transformation occurs in the production of retail orange juice products from manufacturing concentrate. Customs’ ruling must- stand unless it is shown to be arbitrary, capricious, or otherwise not in accordance with the law. 28 U.S.C. § 2640(d) (1982); 5 U.S.C. § 706(2)(A) (1982). In its ruling, Customs addressed each of the factors, name, character, and use, in turn. Plaintiffs argued that the name change from “concentrated orange juice for manufacturing” to “frozen concentated orange juice” and “orange juice from concentrate” was significant to a finding of substantial transformation. The court agrees with Customs’ conclusion that these names, derived from the FDA’s standards of identity, “merely refer to the same product, orange juice, at different stages of production.” In any case, a change in the name of the product is the weakest evidence of a substantial transformation. See Uniroyal, Inc. v. United States, 3 CIT 220, 542 F.Supp. 1026 (1982), aff'd, 702 F.2d 1022 (Fed.Cir.1983) (fact that this imported product was called an “upper” and final product called a “shoe” did not affect the court’s finding of no substantial transformation); United States v. International Paint Co., 35 CCPA 87, 93-94, C.A.D. 376 (1948) (“Under some circumstances a change in name would be wholly unimportant and equally so is a lack of change in name under circumstances such as [in this drawback case].”). Customs also found that the fact that the imported concentrate is sold to" }, { "docid": "18881427", "title": "", "text": "such as fenders. Tr. at 282-84. Finally, despite conflicts in the testimony of the parties’ witnesses concerning the applicability of the terms \"semi-finished” and \"finished” to the products before and after processing, it is clear that while continuous hot-dipped galvanized steel can be put to a variety of end uses, the evidence showed that with very few exceptions, cold rolled steel is not put to end uses without some form of heat treatment. Tr. at 664-65. Such a change in the utility of the product is indicative of a substantial transformation. See Midwood Industries, Inc. v. United States, 64 Cust. Ct. 499, C.D. 4026, 313 F. Supp. 951, appeal dismissed, 57 CCPA 141 (1970) (transition from \"producers’ goods” to \"consumers’ goods”). Based upon all of the evidence presented, the Court finds that the continuous hot-dip galvanizing process causes a change in the use of the steel sheet. The name criterion is generally considered the least compelling of the factors which will support a finding of substantial transformation. National Juice Producers, 628 F. Supp. at 989, (\"a change in the name of the product is the weakest evidence of a substantial transformation”); see Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026 (1982), aff’d 702 F.2d 1022 (Fed. Cir. 1983); United States v. International Paint Co., 35 CCPA 87, C.A.D. 376 (1948). Nonetheless, the satisfaction of the name criterion in this case lends support to plaintiffs’ claim. The witnesses for both parties testified that the processing-of full hard cold-rolled steel sheet results in a product which has a different name, continuous hot-dip galvanized steel sheet. Tr. at 135, 612. The Court also considers relevant whether the operations underlying the asserted transformation have effected a change in the classification of the merchandise under the Tariff Schedules of the United States (TSUS). Change in tariff classification may be considered as a factor in the substantial transformation analysis. Belcrest Linens, 741 F.2d at 1372-73; see Chemo Puro Mfg. Corp. v. United States, 34 Cust. Ct. 8, C.D. 1668, 146 F. Supp. 178 (1954). Here this factor supports a substantial transformation. Full" }, { "docid": "18881416", "title": "", "text": "specifically applied the criteria of name, character and use in determining that orange juice manufacturing concentrate is not substantially transformed in the process that converts the concentrate into frozen concentrated, or reconstituted, orange juice. Although the Court used the word \"essence” in describing the character of the merchandise, the focus of the Court’s analysis was the traditional character criterion: \"The addition of water, orange essences, and oils to the concentrate, while making it suitable for retail sale, does not change the fundamental character of the product, it is still essentially the product of the juice of oranges.” 628 F. Supp. at 991. Uniroyal held that footwear uppers were not exempted from country of origin marking requirements since the attachment of outsoles to the uppers did not constitute a substantial transformation within the meaning of 19 C.F.R. §§ 134.1(d) and 134.35. While the Court referred to the uppers as \"the very essence of the completed shoe,” it made clear that \"the test to be applied is whether the imported article has undergone a 'substantial transformation’ which results in an article having a name, character or use differ ing from that of the imported article.” 3 CIT at 224, 542 F. Supp. at 1029-30. The Court finds that there is no basis in caselaw for the essence test offered by defendant. Defendant cites no case where the name, character and use criteria were satisfied, yet no substantial transformation was found to have occurred. The name, character and use test is entitled to continued adherence in view of its affirmance in recent opinions by our appellate court. See Torrington Co. v. United States, 764 F.2d 1563 (Fed. Cir. 1985); Belcrest Linens v. United States, 741 F.2d 1368 (Fed. Cir. 1984). The argument that the Court should apply a more stringent test depending on the context in which the substantial transformation issue arises is similarly misplaced. Defendant says that \"decisions of the courts hold that the various criteria applied in substantial transformation cases must be considered in light of the objectives of the statute in question * * *. Thus, in this case, where" }, { "docid": "13042429", "title": "", "text": "the marking statute. When “[further work or material added to an article in another country [would] effect a substantial transformation”, such other country will be the “country of origin” within the meaning the statute. Id. The Court finds the procedures performed upon the fish in South Korea to constitute a “substantial transformation” within the meaning of the statute. The country of origin marking statute was intended, inter alia, “to facilitate consumer purchasing decisions_” National Juice Products Ass’n v. United States, 10 CIT 48, 59 n. 15, 628 F.Supp. 978, 989 (1986). By indicating to consumers where a product was manufactured, the statute helps informed and discriminating buyers decide either “to buy or refuse to buy [a product] ... if such markings should influence [their] will.” Id. at 58, 628 F.Supp. at 988 (citations omitted). Courts have developed several tests in determining whether substantial transformation has occurred. The most significant is the “name, character or use” test. Anheuser-Busch Brewing Ass’n v. United States, 207 U.S. 556, 562, 28 S.Ct. 204, 206, 52 L.Ed. 336 (1907). A substantial transformation occurs where articles “lose their identity as such, and become new articles having ... a new name, character, and use_” United States v. Gibson-Thomsen Co., 27 CCPA 267, 270, C.A.D. 98 (1940). The “name, character and use” test is “entitled to continued adherence in view of its affirmance in recent opinions by our appellate court.” Ferrostaal Metals Corp. v. United States, 11 CIT -, -, 664 F.Supp. 535, 538 (1987) (citing Torrington Co. v. United States, 3 Fed.Cir. (T) 158, 764 F.2d 1563 (1985); Belcrest Linens v. United States, 2 Fed.Cir. (T) 105, 741 F.2d 1368 (1984)). The Customs Service has incorporated the name, character or use test of Gibson-Thomsen in its regulations. See 19 C.F.R. § 134.35. A processor who converts an imported article into a different article having a new name, character or use has substantially transformed the imported article, thereby requiring the markings on the product to reflect this change. Id. The article need not experience a change in name, character and use to be substantially transformed. United States v." }, { "docid": "5034720", "title": "", "text": "(2007). . The parties contest whether the statute requires Customs to issue a written statement if the importer does not file a § 1618 petition and, if not, whether Nitek's letter dated March 3, 2011, constitutes such a petition. Def.'s Br. 6-7; Pl.’s Resp. 16-18; Def.’s Reply 10-13. Defendant also argues that Plaintiff’s failure to list six covered entries in the penalty notice bars recovery of any penalty based upon importation of those entries. Def.’s Br. 5-6. As the court finds that Plaintiff did not otherwise perfect its penalty claim, the court will not address these issues. . As Plaintiff notes, Optrex also differs from the instant action in that the government there sought to add additional claims, pursuant to Rule 15(a), rather than changing the level of culpability of a claim imposed below. Pl.’s Resp. 15 (citing Optrex, 29 CIT at 1496). In light of the applicable statutory regime, however, this proves to be a distinction without a difference. By alleging a level of culpability different from that alleged below, the government here (as in Optrex) is asserting an entirely new claim. . Most strikingly, Plaintiff does not discuss § 1592(b)(l)(A)(v), which requires the prepenalty notice to \"state whether the alleged violation occurred as a result of fraud, gross negligence, or negligence.” Instead, Plaintiff relies solely on United States v. Jean Roberts of Cal., Inc., 30 CIT 2027, 2006 WL 3775970 (2006) (not reported in F. Supp.) {“Jean Roberts \"), which is inapposite. The court in Jean Roberts addressed a penalty claim in which Customs specifically stated that the importer would be subject to a penalty in the amount of two times the lost revenue, but, apparently in error, listed a dollar amount equal to the lost revenue. Id. The court found that despite this error the government could seek recovery for a penalty two times the lost revenue. Id. Though Plaintiff truncates its explanatory parenthetical to omit this fact, the court in Jean Roberts characterized Optrex as relying not only on \"the necessity of adequate notice” but also on the § 1592’s purpose of affording importers the opportunity" }, { "docid": "12894214", "title": "", "text": "(ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, it has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. 19 U.S.C. § 2518(4)(B) (emphasis added). Disputes under part (i) of this rule of origin would be rare. Consequently, in the context of a Section 305(b)(1) final determination, conflicts regarding the country of origin typically hinge on where a particular article is found to have been substantially transformed. While this is the first 28 U.S.C. § 1581(e) case brought at the U.S.C.I.T., the court has frequently dealt with similar substantial transformation issues in the context of reviewing other types of country of origin determinations. See, e.g., Ugine and Alz Belgium, N.V. v. U.S., 31 CIT 1536, 1541-43, 517 F.Supp.2d 1333, 1337-38 (2007) (noting the substantial transformation determinations made by both Customs and the U.S. Department of Commerce in the context of a countervailing duty proceeding), Torrington Co. v. U.S., 8 CIT 150, 596 F.Supp. 1083 (1984) (making a substantial transformation determination in the context 28 U.S.C. § 1581(a)). The substantial transformation rule of origin stands in contrast to the rule of origin that applies under the Buy American Act. In order for a good to be considered a “domestic end product,” procurable under the BAA, it must be manufactured in the United States “substantially all from articles, materials, or supplies mined, produced, or manufactured ... in the United States.” 41 U.S.C. § 10a(a). By executive order, “substantially all” has been clarified to mean greater than 50% domestic content. Exec. Order No. 10,582,19 Fed.Reg. 8,723 (Dec. 17, 1954), reprinted as amended after 41 U.S.C. § 10d at 346-47 (2006). The disparity between the applicable rules of origin under the TAA and the BAA is not without consequence. As originally implemented, this incongruity threatened to effect a disadvantage for certain goods manufactured in the U.S., that was nothing short of ironic. While the purpose of the TAA had" }, { "docid": "114324", "title": "", "text": "regulations under various tariff provisions define the term differently, it is clear that a “substantial transformation” occurs when as a result of a process an article emerges, having a distinctive name, character or use, in essence the definition of manufacture quoted above. See, e.g., Uniroyal, Inc. v. United States, 3 C.I.T. 220, 542 F.Supp. 1026 (1982), aff'd per curiam 702 F.2d 1022 (Fed.Cir.1983); Texas Instruments, Inc. v. United States, 681 F.2d 778 (CCPA 1982); Midwood Industries, Inc. v. United States, 64 Cust.Ct. 499 (1970). Again, it is difficult to perceive the difference between this test and that used by the trial court, that there was a change in the appearance, character, identity and use of the involved merchandise. Moreover, the trial court specifically concluded that the merchandise was substantially transformed in Hong Kong. The government challenges this conclusion on the ground that in order for there to be “a substantial transformation” of the merchandise, the processes performed in Hong Kong must have changed the article into one with a new tariff identity. The government argues that this did not occur in this case because the processes performed in Hong Kong merely finished an identifiable product, unfinished pillowcases. Therefore, there was no “substantial transformation.” First, we note that the government cites no case which stands for the proposition that a change in tariff identity is the sole criterion for determining whether a substantial transformation occurred. The government relies heavily on the Chemo case which it otherwise criticizes the trial court for citing. However, in Chemo, a change in tariff identity was only one of the factors considered. Moreover, the Court of Customs and Patent Appeals has specifically stated that: While the fact that by a manufacturing effort expended on an article its tariff status may have been changed is a proper matter to consider along with other circumstances in arriving at a conclusion as to whether the article has been “manufactured or produced”, it certainly should not be a controlling consideration. Rolland Freres, Inc. v. United States, 25 CCPA 81 (1935). Similarly, in the recent Customs Service decision 80-10, 14 Cust.Bull." }, { "docid": "13042431", "title": "", "text": "International Paint Co., 35 CCPA 87, C.A.D. 376 (1948). Only one of the three prongs needs to be satisfied for a product to achieve substantial transformation. The name element, however, has received less weight and is considered “the weakest evidence of substantial transformation.” National Juice Products, 10 CIT at 59, 628 F.Supp. at 989; cf. Superior Products Co. v. United States, 11 CIT at -, 669 F.Supp. at 478 (changes in use or character were the predominant elements). In the present action, the criteria for substantial transformation have been satisfied. The fish’s name has been changed as the result of the processing method which occurred in Korea. When the fish arrive in Korea they are known as “headed and gutted” Hoki, as they have been beheaded, de-tailed and eviscerated. Plaintiff’s Response to Defendant’s Statement of Material Facts as to Which There is No Genuine Issue to be Tried, Exhibit A, Reply Affidavit of D.J. Easton (Easton Reply Affidavit), para. 2. The fish fillets exported from Korea to the United States, on the other hand, are known as “individually quick-frozen (IQF) fillets.” Id. at para. 5(e). While change of name is not disposi-tive, “satisfaction of the name criterion” is evidence in favor of a finding of substantial transformation. Ferrostaal Metals, 11 CIT at -, 664 F.Supp. at 541. The fish’s character, after its journey through Korea, is also vastly different from what it was upon departure from New Zealand. Plaintiffs Reply Brief at 9. The fish arrive in Korea, with the look of a whole fish, albeit without heads, tails or viscera, see id. at 9 (citing Easton Reply Affidavit, paras. 5(e) and (g)), whereas the fish that are exported from Korea have no skin or bones, “no longer possess the essential shape of the fish ... have been trimmed of jagged edges, fat lines and impurities, glazed to preserve their moisture and thereby enhance their shelf life, frozen to protect the fish from spoilage and finally, packaged.” Id. at 9. Additionally, the fillets are considered discrete commercial goods and are sold in separate areas and markets. Id. at 10. Unlike" }, { "docid": "18881414", "title": "", "text": "a bilateral trade agreement, substantial transformation is the focus of many cases involving country of origin markings, see, e.g., National Juice Products Ass’n v. United States, 10 CIT 48, 628 F. Supp. 978 (1986), and cases involving American goods returned, see, e.g., Upjohn Co. v. United States, 9 CIT 600, 623 F. Supp. 1281 (1985). The essence of these cases is that a product cannot be said to originate in the country of exportation if it is not manufactured there. The question, therefore, is whether operations performed on products in the country of exportation are of such a substantial nature to justify the conclusion that the resulting product is a manufacture of that country. \"Manufacture implies a change, but every change is not manufacture * * *. There must be transformation; a new and different article must emerge, 'having a distinctive name, character, or use.’ ” Anheuser-Busch Brewing Ass’n v. United States, 207 U.S. 556, 562 (1908). The criteria of name, character and use continue to determine when substantial transformation has occurred, and the prior cases of this court and our predecessor and appellate courts provide guidance in the application of this test. The Court finds it necessary to address two arguments raised by defendant before applying the criteria to the merchandise in question. These are (1) that name, character and use provide only part of the controlling test of whether the \"essence” of the product has been altered, which may not be satisfied despite changes in name, character and use; and (2) even though changes have occurred which would ordinarily result in a finding of substantial transformation, a different result may be found in the context of an agreement designed to restrict imports, where the Court may apply different criteria requiring more substantial changes in the imported product. Defendant’s suggestion that an \"essence” test has displaced name, character and use is attributed to the Court’s decisions in National Juice Products, supra, and Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983). In National Juice Products, however, the Court" }, { "docid": "10281780", "title": "", "text": "essential character of the cordless telephone. See Uniroyal, Inc. v. United States, 3 CIT 220, 225, 542 F. Supp. 1026, 1030 (1982), aff’d 702 F.2d 1022 (Fed. Cir. 1983) (holding that imported shoe uppers added to an outer sole in the United States were “the veiy essence of the finished shoe” and thus were not substantially transformed); see also National Juice Prods. Ass’n v. United States, 10 CIT 48, 61, 628 F. Supp. 978, 991 (1986)(holding that imported orange juice concentrate “imparts the essential character” to the completed orange juice and thus was not substantially transformed)(internal cites omitted). We answer in the negative. The essence of the telephone is housed in the base and the handset. Consumers do not buy the article because of the specific function of the A/C adapter, but rather because of what the completed handset and base provide: communication over telephone wires. In short, the A/C adapter does not “impart the essential character” of the cordless telephone, and the cordless telephone may therefore be considered as having a character different from the A/C adapter. Accordingly, as a matter of law, because the name, use and character of the original materials have changed during the process of manufacturing, a substantial transformation has occurred. The cordless telephone is a new or different article of commerce which has been grown, produced, or manufactured in the BDC. In arguing for the opposite conclusion, Customs apparently confuses the appropriate application of the “thirty-five percent cost/value” test with the “product of” test. In 19 U.S.C. §2463(b), the substantial transformation test is employed twice. First, it is used to determine whether an article is a “product of” the BDC. Then it is used to determine if thirty-five percent of the eligible article is made or processed in the BDC. In order to achieve the aim of these different and separate provisions of the statute, the substantial transformation test must itself be applied differently and separately. Customs’ argument is that the “product of” test is governed by 19 C.F.R. § 10.177, which, in relevant part, provides: § 10.177 Cost or value of materials produced" }, { "docid": "13042430", "title": "", "text": "substantial transformation occurs where articles “lose their identity as such, and become new articles having ... a new name, character, and use_” United States v. Gibson-Thomsen Co., 27 CCPA 267, 270, C.A.D. 98 (1940). The “name, character and use” test is “entitled to continued adherence in view of its affirmance in recent opinions by our appellate court.” Ferrostaal Metals Corp. v. United States, 11 CIT -, -, 664 F.Supp. 535, 538 (1987) (citing Torrington Co. v. United States, 3 Fed.Cir. (T) 158, 764 F.2d 1563 (1985); Belcrest Linens v. United States, 2 Fed.Cir. (T) 105, 741 F.2d 1368 (1984)). The Customs Service has incorporated the name, character or use test of Gibson-Thomsen in its regulations. See 19 C.F.R. § 134.35. A processor who converts an imported article into a different article having a new name, character or use has substantially transformed the imported article, thereby requiring the markings on the product to reflect this change. Id. The article need not experience a change in name, character and use to be substantially transformed. United States v. International Paint Co., 35 CCPA 87, C.A.D. 376 (1948). Only one of the three prongs needs to be satisfied for a product to achieve substantial transformation. The name element, however, has received less weight and is considered “the weakest evidence of substantial transformation.” National Juice Products, 10 CIT at 59, 628 F.Supp. at 989; cf. Superior Products Co. v. United States, 11 CIT at -, 669 F.Supp. at 478 (changes in use or character were the predominant elements). In the present action, the criteria for substantial transformation have been satisfied. The fish’s name has been changed as the result of the processing method which occurred in Korea. When the fish arrive in Korea they are known as “headed and gutted” Hoki, as they have been beheaded, de-tailed and eviscerated. Plaintiff’s Response to Defendant’s Statement of Material Facts as to Which There is No Genuine Issue to be Tried, Exhibit A, Reply Affidavit of D.J. Easton (Easton Reply Affidavit), para. 2. The fish fillets exported from Korea to the United States, on the other hand, are" }, { "docid": "18165105", "title": "", "text": "(1960). See also e.g., United States v. Murray, 621 F. 2d 1163 (1st Cir. 1980); Texas Instruments, Inc. v. United States, 69 CCPA —, (1982), 681 F.2d 778 (1982). Examining the facts in the present case, the conclusion is clear that a substantial transformation of the upper has not occurred since the attachment of the outsole to the upper is a minor manufacturing or combining process which leaves the identity of the upper intact. Thus the upper — which in its condition as imported is already a substantially complete shoe — is readily recognizable as a distinct item apart from the outsole to which it is attached. And the manufacturing process performed by Stride-Rite is a minor assembly operation which requires only a small fraction of the time and cost involved in producing the uppers. The fact is that the manufacturing operation performed by Stride-Rite in attaching the outsole to the upper is conceptually no different than (for example) attaching buttons to a man’s dress shirt or attaching handles to a finished piece of luggage. To consider attachments of this kind to be a “substantial transformation” would be to open the door wide to frustration of the entire purpose of the marking statute. Thus in the present case it would be misleading to allow the public to believe that a shoe is made in the United States when the entire upper — which is the very essence of the completed shoe — is made in Indonesia and the only step in the manufacturing process performed in the United States is the attachment of an outsole. Notwithstanding these considerations, plaintiff insists that the following cases support its position that Stride-Rite’s attachment of the outsole effects a “substantial transformation” of the imported uppers so as to exempt them from the country of origin marking requirements: United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); United States v. International Paint Co., Inc. 35 CCPA 87, C.A.D. 376 (1948); Midwood Industries, Inc. v. United States, 64 Cust. Ct. 499, C.D. 4026, 315 F. Supp. 951 (1970), appeal dismissed, 57 CCPA 141" }, { "docid": "18881426", "title": "", "text": "steel sheet as a result of the continuous hot-dip galvanizing process. Testimony at trial overwhelmingly demonstrated that cold-rolled steel is not interchangeable with steel of the type imported, nor are there any significant uses of cold-rolled sheet in place of annealed sheet. Tr. at 170, 230, 258, 363, 412-13. Defendant’s witness stated that the frequency with which the two types of steel compete with or are interchangeable with each other is \"very limited,” perhaps less than one or two percent. Tr. at 647. Witnesses having expertise with respect to the construction and building industry testified as to the lack of interchangeability between the products, and stated that building codes governing various building and construction applications would nonetheless prevent substitution by requiring that galvanized products be used. Tr. at 428-33. The inability to form full cold rolled steel sheet also prohibits its substitution for annealed steel sheet. Testimony showed that in the automobile industry only annealed steel, and not cold-rolled steel, can be used to make parts that require at least a moderate amount of forming, such as fenders. Tr. at 282-84. Finally, despite conflicts in the testimony of the parties’ witnesses concerning the applicability of the terms \"semi-finished” and \"finished” to the products before and after processing, it is clear that while continuous hot-dipped galvanized steel can be put to a variety of end uses, the evidence showed that with very few exceptions, cold rolled steel is not put to end uses without some form of heat treatment. Tr. at 664-65. Such a change in the utility of the product is indicative of a substantial transformation. See Midwood Industries, Inc. v. United States, 64 Cust. Ct. 499, C.D. 4026, 313 F. Supp. 951, appeal dismissed, 57 CCPA 141 (1970) (transition from \"producers’ goods” to \"consumers’ goods”). Based upon all of the evidence presented, the Court finds that the continuous hot-dip galvanizing process causes a change in the use of the steel sheet. The name criterion is generally considered the least compelling of the factors which will support a finding of substantial transformation. National Juice Producers, 628 F. Supp. at 989," }, { "docid": "18881415", "title": "", "text": "cases of this court and our predecessor and appellate courts provide guidance in the application of this test. The Court finds it necessary to address two arguments raised by defendant before applying the criteria to the merchandise in question. These are (1) that name, character and use provide only part of the controlling test of whether the \"essence” of the product has been altered, which may not be satisfied despite changes in name, character and use; and (2) even though changes have occurred which would ordinarily result in a finding of substantial transformation, a different result may be found in the context of an agreement designed to restrict imports, where the Court may apply different criteria requiring more substantial changes in the imported product. Defendant’s suggestion that an \"essence” test has displaced name, character and use is attributed to the Court’s decisions in National Juice Products, supra, and Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983). In National Juice Products, however, the Court specifically applied the criteria of name, character and use in determining that orange juice manufacturing concentrate is not substantially transformed in the process that converts the concentrate into frozen concentrated, or reconstituted, orange juice. Although the Court used the word \"essence” in describing the character of the merchandise, the focus of the Court’s analysis was the traditional character criterion: \"The addition of water, orange essences, and oils to the concentrate, while making it suitable for retail sale, does not change the fundamental character of the product, it is still essentially the product of the juice of oranges.” 628 F. Supp. at 991. Uniroyal held that footwear uppers were not exempted from country of origin marking requirements since the attachment of outsoles to the uppers did not constitute a substantial transformation within the meaning of 19 C.F.R. §§ 134.1(d) and 134.35. While the Court referred to the uppers as \"the very essence of the completed shoe,” it made clear that \"the test to be applied is whether the imported article has undergone a 'substantial transformation’ which" }, { "docid": "18353781", "title": "", "text": "for this proposition and the court does not find persuasive the argument that such costs are a factor in determining whether an article has undergone substantial transformation. Cf. Ishimitsu v. United States, 11 Ct.Cust.App. 186, T.D. 38,963 (1921). It is unclear whether plaintiffs contend that the addition of water constitutes a substantial change. The court believes it does not, in and of itself, constitute such a change in the context of the products under discussion. The court, however, did consider the value added by the addition of water together with the oils, essences and the overall blending process. Considering the process as a whole, the court concludes that Customs could rationally determine that the major part of the end product, when measured by cost, value, or quantity, is manufacturing concentrate and that the processing in the United States is a minor manufacturing process. The court also finds reasonable Customs’ conclusion that the manufacturing concentrate “imparts the essential character to the juice and makes it orange juice.” C.S.D. 85-47, 19 Cust. Bull. No. 39 at 26. Thus, as in Uniroyal, the imported product is “the very essence” of the retail product. Uniroyal, 3 CIT at 224, 542 F.Supp. at 1030. The retail product in this case is essentially the juice concentrate derived in substantial part from foreign grown, harvested, and processed oranges. The addition of water, orange essences, and oils to the concentrate, while making it suitable for retail sale, does not change the fundamental character of the product, it is still essentially the product of the juice of oranges. The court concludes that Customs’ ruling that manufacturing juice concentrate is not substantially transformed when it is processed into retail orange juice products is not arbitrary or capricious, but is in accordance with applicable law. The orange juice processors are not the ultimate purchasers of the imported product because consumers are the last purchasers to receive the product in essentially the form in which it is imported. In accordance with 19 U.S.C. § 1304, the retail packaging must bear an appropriate country-of-origin marking. Having found that Customs’ decision is not arbitrary" }, { "docid": "18353802", "title": "", "text": ". Lykes Pasco Packing Company illustated this point by calculating the impact of the stockpiling suggestion had it been implemented for eight months during 1985. If Lykes Pasco purchased the concentrate directly from Brazil, it would have lost $3.5 million. If the concentrate had been purchased on the futures market, the company would have lost $6.5 million. Affidavit of Talmage G. Rice. . 28 U.S.C. § 2639(b) (1982) states: \"In any civil action described in section 1581(h) of this title, the person commencing the action shall have the burden of making the demonstration required by such section by clear and convincing evidence.” . 28 U.S.C. § 2643(c)(4) (1982) provides: \"In any civil action described in section 1581(h) of this title, the Court of International Trade may only order the appropriate declaratory relief.\" . This product, orange juice in liquid form, is also called orange juice from concentrate. . Degree brix is a measurement of the percentage of the soluble solids (sugar) in a concentrate, as measured in air at 20° centigrade and adjusted for the acid correction of the solids. Thus, manufacturing concentrate with a brix value of 65° contains 65 pounds of fruit sugar solids in every 100 pounds of solution. . In Gibsen-Thomsen, the court indicated that substantial transformation occurs when an article acquires a “new name, character, and use.” Gibson-Thomsen, 27 CCPA at 273 (emphasis added). This restrictive test was modified to require a \"new name, character, or use.” Midwood Indus., Inc. v. United States, 64 Cust.Ct. 499, 506, 313 F.Supp. 951, 959 (emphasis added), appeal dismissed, 57 CCPA 141 (1970). As modified, the test is similar to the tests for whether an article is a \"manufacture or product” of a given country for drawback purposes and whether an article has been \"[sjubstantiaily transformed in [a] beneficiary developing country into a new and different article of commerce\" for duty free treatment under the Generalized System of Preference (GSP). 19 C.F.R. § 10.177(a)(2) (1985). The drawback test states that for a manufacture to occur “[t]here must be a transformation; a new and different article must emerge, ‘having a" }, { "docid": "18881413", "title": "", "text": "F.2d 399 (1982); Springfield Industries Corp. v. United States, 11 CIT 123, 655 F. Supp. 506 (1987). There is no futility in exhausting administrative remedies where the protest challenges a substantial transformation decision promulgated and subject to reconsideration by Customs. Furthermore, the current reviewability of the August 25, 1986 Customs ruling belies any perceived inadequacy or unjustifiable delay associated with the jurisdiction provided under section 1581(a). As such, jurisdiction under section 1581(a) provides plaintiff an adequate remedy notwithstanding that the action covers only the entries that are the subject of the protest denied by Customs. Ill The Court turns to the dispositive question whether the operations performed in New Zealand on full hard cold-rolled steel sheet from Japan involved a substantial transformation, thereby rendering the imported steel a product of New Zealand. Substantial transformation is a concept of major importance in administering the customs and trade laws. In addition to its role in identifying the country of origin of imported merchandise for purposes of determining dutiable status, or, as in this case, the applicability of a bilateral trade agreement, substantial transformation is the focus of many cases involving country of origin markings, see, e.g., National Juice Products Ass’n v. United States, 10 CIT 48, 628 F. Supp. 978 (1986), and cases involving American goods returned, see, e.g., Upjohn Co. v. United States, 9 CIT 600, 623 F. Supp. 1281 (1985). The essence of these cases is that a product cannot be said to originate in the country of exportation if it is not manufactured there. The question, therefore, is whether operations performed on products in the country of exportation are of such a substantial nature to justify the conclusion that the resulting product is a manufacture of that country. \"Manufacture implies a change, but every change is not manufacture * * *. There must be transformation; a new and different article must emerge, 'having a distinctive name, character, or use.’ ” Anheuser-Busch Brewing Ass’n v. United States, 207 U.S. 556, 562 (1908). The criteria of name, character and use continue to determine when substantial transformation has occurred, and the prior" } ]

[ { "docid": "18601468", "title": "", "text": "of the defalcation category. On the other side, the Carey Lumber decision demonstrates that a standard that is less than intent is appropriate. It is consistent with the term willful and the purposes of the Bankruptcy Code to impose a standard of recklessness. Gaubert, 149 B.R. at 827. The Eleventh Circuit has also recently addressed the perplexing “defalcation” question. In Quaif v. Johnson, 4 F.3d 950 (11th Cir.1993), the court stated the following: “Defalcation” refers to a failure to produce funds entrusted to a fiduciary. In re Alvey, 56 B.R. 170 (Bankr.W.D.Ky.1985). However, the precise meaning of “defalcation” for purposes of § 523(a)(4) has never been entirely clear. [In re] Turner, 134 B.R. 646 at 657 [ (Bkrtcy.N.D.Okl.1991)]. An early, and perhaps the best, analysis of this question is that of Judge Learned Hand in Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2nd Cir.1937). Judge Hand concluded that while a purely innocent mistake by the fiduciary may be dischargeable, a “defalcation” for purposes of this statute does not have to rise to the level of “fraud,” “embezzlement,” or even “misappropriation.” Id. at 512. Some cases have read the term even more broadly, stating that even a purely innocent party can be deemed to have committed a defalcation for purposes of § 523(a)(4). See [In re] McCormick, 70 B.R. [49] at 51 [(Bkrtcy.W.D.Pa.1987)]; American Ins. Co. v. Lucas, 41 B.R. 923 (W.D.Pa.1984). Id. at 955. The Eleventh Circuit held that the conduct at issue in Quaif “was far more than an innocent mistake or even negligence.” Id. Numerous district and bankruptcy courts have also addressed the question of whether negligent acts may be “defalcations.” Most have concluded that they can. Nonetheless, we agree with the Sixth Circuit (and possibly the Fifth) that a mere negligent breach of a fiduciary duty is not a “defalcation” under section 523(a)(ll). “It is a well recognized principle in bankruptcy law that exceptions to discharge are strictly construed against the objecting creditor and in favor of the debtor. This is based on the strong policy of the Bankruptcy Code of providing a" } ]

[ { "docid": "4637282", "title": "", "text": "“fraud” is a relatively common legal term having a more steadfast definition, “defalcation” is not. The modern definition of “defalcation,” for bankruptcy purposes, emanates from the case of Central Hanover Bank & Trust v. Herbst, 93 F.2d 510 (2d Cir.1937). In delivering the opinion for the Second Circuit Court of Appeals, Judge Learned Hand defined “defalcation” as a much broader term than “embezzlement” or “misappropriation.” He premised this statement on the fact that the original section where “defalcation” first appeared, appeared with “embezzlement” and “fraud.” He reasoned that “it must here have covered other defaults than deliberate malversations, else it added nothing to the words, ‘fraud or embezzlement.’ ” Central Hanover, 93 F.2d at 511. Prior to the Central Hanover decision, “defalcation” had a colloquial definition which implied some “moral dereliction.” Central Hanover injected the interpretation that, in the bankruptcy sense, “defalcation” could even include innocent defaults by fiduciaries, but because the law was unclear, the court would assume that it required some minimal form of impropriety, although much less than that commanded for fraud, embezzlement, or misappropriation. Modern cases interpret Central Hanover’s definition of “defalcation” closely to Judge Hand’s idea. They have upheld the proposition that “defalcation” is a much broader term than misappropriation or fraud. See, e.g., In re Johnson, 691 F.2d 249, 254-55 (6th Cir.1982); In re Reeves, 124 B.R. 5, 8 (Bankr.D.N.H.1990); In re Hirsch, 101 B.R. 364, 366 (Bankr.S.D.Fla.1989); In re Guy, 101 B.R. 961, 984-85 (Bankr.N.D.Ind.1988). The broadening definition lengthens the list of actions constituting a “defalcation” to now include negligent, innocent, ignorant, or simple defaults or actions which breach fiduciary duties. See In re Twitchell, 72 B.R. 431, 434-35 (Bankr.D.Utah 1987), rev’d, 91 B.R. 961 (D.Utah 1988), rev’d, 892 F.2d 86 (10th Cir. 1989). Hi. Fiduciary Duties Generally, two duties exist under a fiduciary relationship: the duty of care, and the duty of loyalty. See, e.g., Gearhart Industries, Inc. v. Smith Internat'l, Inc., 741 F.2d 707, 719 (5th Cir.1984) (dividing the duty of care into duty of care and duty of obedience); Imperial Group (Texas), Inc. v. Scholnick, 709 S.W.2d 358, 363 (Tex.App.—Tyler" }, { "docid": "7471410", "title": "", "text": "of these have cited the “technical trust” language of Davis. See, e.g., Garver, 116 F.3d at 179-80; Young, 91 F.3d at 1371-72; Mason, 191 B.R. at 54-55; Stokes, 142 B.R. at 909-10. A possible explanation for these cases might be that the debts involved either did not arise within the scope of the attorney-client relationship, see Barton, 465 F.Supp. at 923-24, or, for reasons discussed below, did not involve a “defalcation.” This view is supported in part by other cases holding attorneys’ commercial debts nondischargeable when the commercial relationship is too intertwined with the legal one. See, e.g., In re Cochrane, 124 F.3d 978, 984 (8th Cir.1997) (attorney self-dealing in business deal with clients); In re Charfoos, 183 B.R. 131, 136-37 (Bankr.E.D.Mich.1994) (attorney used influence with client to gain loan). Nevertheless, the reasoning of the opinions in cases such as Garver, even if not required by the facts, rejects the view that the attorney-client relationship is of a fiduciary nature for purposes of Section 523(a)(4). We respectfully disagree with that reasoning. Instead, we follow the Eighth Circuit in holding that the attorney-client relationship, without more, constitutes a fiduciary relationship within the meaning of Section 523(a)(4). See Cochrane, 124 F.3d at 984; see also Marchiando, 13 F.3d at 1115 (stating, in dictum, that attorney-client relationship is fiduciary relationship under Section 523(a)(4)). Further, for the reasons stated above, we hold that the attorney’s fiduciary obligation extends to matters involving fee agreements. We therefore turn to the question of whether the debt was the result of a defalcation. b) Defalcation As noted, the term defalcation has appeared in every bankruptcy act since 1841. Despite its longstanding use, however, its precise meaning remains unclear. See In re Twitchell, 72 B.R. 431, 434 (Bankr.D.Utah 1987) (“The term ‘defalcation’ ... does not have a precise definition and no legislative history or comment exists to aid the interpretation.”), rev’d, 91 B.R. 961 (D.Utah 1988), rev’d, 892 F.2d 86 (10th Cir.1989) (table). The first significant effort to define the term was undertaken by Judge Learned Hand in Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510," }, { "docid": "4625511", "title": "", "text": "in an account designated as a custodial account. Mahon v. Stowers, 416 U.S. 100, at p. 108; 94 S.Ct. 1626, 40 L.Ed.2d 79 (1974); Smeed v. Carpenter, 274 F.2d 414 (9th Cir. 1960); Hyatt v. United States, 276 F.2d 308 (10th Cir. 1960). In order for a debt to be nondischargeable under Section 523(a)(4), Bankruptcy Code, as noted above, the Debtor must have committed fraud, defalcation, embezzlement or larceny while acting in a fiduciary capacity. Neither the Legislative History, Comment, nor current jurisprudence concerning Section 523(a)(4), Bankruptcy Code, reveal Congressional intent as to the interpretation to be given to the word “defalcation.” The predecessor of Section 523(a)(4), Bankruptcy Code, is Section 17(a)(4), Bankruptcy Act: “Sec. 17. Debts Not Affected by a Discharge. a. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as ... (4) were created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity; The difference between Section 17(a)(4), Bankruptcy Act, and Section 523(a)(4), Bankruptcy Code, is merely one of form. One of the results obtained in both is the nondischargeability of a debt created by defalcation while acting in a fiduciary capacity. It is therefore appropriate to consider the authorities relating to Section 17(a)(4), Bankruptcy Act, to determine the meaning of “defalcation” as used in Section 523(a)(4), Bankruptcy Code. In Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2d Cir. 1937), “defalcation” was placed in its historical context, without limiting the meaning to specific parameters. The Court rejected the notion that defalcation necessarily implies an embezzlement, fraud or misappropriation. While a defalcation may involve some misconduct, the Court concluded that the mere taking of money entrusted to a fiduciary is a defalcation. However, the Court further reiterated the position taken in In re Bernard, 87 F.2d 705 (2d Cir. 1937) that the act must be more than mere negligence or mistake. The district court in Matter of Kawczynski, 442 F.Supp. 413 (W.D.N.Y.1977) further reasoned that the meaning of defalcation in Central Hanover" }, { "docid": "18487807", "title": "", "text": "In re Byrd, 15 B.R. at 156; In re Cairone, 12 B.R. at 63; In re Matheson, 10 B.R. at 656; In re Wheeler, 10 B.R. at 235. The \"state of mind” issue under section 523(a)(4) was briefly contemplated, but not decided, by the Eleventh Circuit in Quaif v. Johnson, 4 F.3d 950 (11th Cir.1993). In Quaif, the court found that an insurance agent’s intentional transfer of funds from his insurance premium common account to his operating and payroll account and failure to remit the premiums to the insurer constituted a defalcation under section 523(a)(4) where a state statute required the insurance agent to segregate premiums in a common account separate from other types of funds. On the meaning of \"defalcation,\" the court stated: “Defalcation” refers to a failure to produce funds entrusted to a fiduciary. However, the precise meaning of \"defalcation” for purposes of § 523(a)(4) has never been entirely clear. An early, and perhaps the best, analysis of this question is that of Judge Learned Hand in Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2nd Cir.1937). Judge Hand concluded that while a purely innocent mistake by the fiduciary may be dischargeable, a \"defalcation” for purposes of this statute does not have to rise to the level of \"fraud,” \"embezzlement,” or even \"misappropriation.” Id. at 512. Some cases have read the term even more broadly, stating that even a purely innocent party can be deemed to have committed a defalcation for purposes of § 523(a)(4). The record before the court indicates that the transfer of funds from the premium account to the operating and payroll accounts was far more than an innocent mistake or even negligence. Quaif does not seriously contest that the transfer was intentional. Therefore, the cotut must conclude that the failure to remit premiums to Ambassador constituted a defalcation within the meaning of § 523(a)(4). 4 F.3d at 950, 955 (citations omitted). The opinion in Quaif is a verbatim adoption of the opinion of the District Cotut appealed from. Since the district court found as a matter of fact that the conduct" }, { "docid": "18534116", "title": "", "text": "she will provide will establish that all expenditures she made as guardian were in good faith and provided necessary food and shelter for her son. The arguments of the parties shall be considered below. To obtain a judgment of nondischarge-ability under § 523(a)(4) of the Bankruptcy Code the Sixth Circuit has held that the following must be proven: (1) an express trust status to the property at issue; (2) [the debtor] must have been acting in a fiduciary capacity; (3) [the debtor] must have breached this relationship by at least “defalcation” of funds. Capital Indemnity Corp. v. Interstate Agency, Inc. (In re Interstate Agency, Inc.), 760 F.2d 121, 124 (6th Cir.1985). The first two elements of the Interstate Agency court’s tripartite discharge-ability test do not appear to be disputed by the parties. As guardian of the estate of Corey Paul Chapman, Debtor held $37,500 in trust and certainly occupied the position of a fiduciary under Ohio law. See, Ohio Revised Code § 1339.03(B). The disposi-tive issue, then, is whether the Debtor is guilty of defalcation within the meaning of 11 U.S.C. § 523(a)(4). The Sixth Circuit in Interstate Agency articulated the following definition of “defalcation”: “ ‘Defalcation’ is defined as encompassing embezzlement, the ‘misappropriation of trust funds held in any fiduciary capacity’ and the ‘failure to properly account for such funds.’ ” 760 F.2d at 125 (quoting BLACK’S LAW DICTIONARY at 375 (5th ed. 1979)). It has long been held that to establish defalcation one need not prove intentional misconduct on the fiduciary’s part. Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511-12 (2d Cir.1937) (interpreting the term defalcation against the backdrop of the Bankruptcy Acts of 1800,1841 and 1898). Following Judge Learned Hand’s decision in the seminal Central Hanover Bank case, the Sixth Circuit stated that “creating a debt by breáching a fiduciary duty is a sufficiently bad act to invoke the section 17(a)(4) exception [to discharge] even without a subjective mental state evidencing intent to breach a known fiduciary duty or bad faith in doing so.” Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691" }, { "docid": "23423175", "title": "", "text": "revoked and knows at the time that it may, he is guilty of a ‘defalcation’ though it may not be a ‘fraud’ or an ‘embezzlement,’ or perhaps not even a ‘misappropriation.’ 93 F.2d at 511-12 (citations omitted) (emphasis added). In Central Hanover, therefore, Judge Hand concluded that although the language and the history of the Bankruptcy Act indicated that “defalcation” did not involve intentional misconduct, he did not have to so find because where an officer of the court is charged with knowledge and acts contrary to his or her duties as an officer there is a “defalcation” for the purposes of the dischargeability of a debt in bankruptcy, Since Central Hanover, courts have agreed that the word “defalcation” is a failure to account for funds entrusted to a fiduciary. See, e.g., Pahlavi v. Ansari (In re Ansari), 113 F.3d 17, 20 (4th Cir.), cert. denied,—U.S.-, 118 S.Ct. 298, 139 L.Ed.2d 230 (1997); Otto v. Niles (In re Niles), 106 F.3d 1456, 1460 (9th Cir.1997); Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir.1996); Quaif v. Johnson, 4 F.3d 950, 955 (11th Cir.1993); San Saba Pecan, Inc. v. Failing (In re Failing), 124 B.R. 340, 344 (W.D.Okla.1989); Semilof v. Waskew (In re Waskew), 191 B.R. 34, 37 (Bankr.S.D.N.Y.1995); State v. Kaczynski (In re Kaczynski), 188 B.R. 770, 777 (Bankr.D.N.J.1995); Burt Bldg. Material Corp. v. Silba (In re Silba), 170 B.R. 195, 201 (Bankr.E.D.N.Y.1994); Discount Home Ctr., Inc. v. Turner (In re Turner), 134 B.R. 646, 658 (Bankr.N.D.Okla.1991); see also Kansas State Bank & Trust Co. v. Vickers (In re Vickers), 577 F.2d 683, 687 (10th Cir.1978) (“ ‘fiduciary capacity’ as used in Section 17(a)(4) [the predecessor to section 523(a)(4) ] refers to money or property entrusted by one to another.” (citing Allen v. Romero (In re Romero), 535 F.2d 618, 621 (10th Cir.1976))). Courts also agree that fiduciaries are charged with knowledge of their duties and of applicable law, and that a subjective intent to breach a fiduciary duty or a law is irrelevant. See, e.g., Meyer v. Rigdon, 36 F.3d 1375, 1385 (7th Cir.1994) (interpreting “defalcation”" }, { "docid": "23423177", "title": "", "text": "under section 523(a)(11)); Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 257 (6th Cir.1982); Carey Dumber Co. v. Bell, 615 F.2d 370, 376 (5th Cir.1980); Central Hanover, 93 F.2d at 512; Turner, 134 B.R. at 658; Anderson v. Currin (In re Currin), 55 B.R. 928, 934 (Bankr.D.Colo.1985); see also In re Hammond, 98 F.2d 703, 705 (2nd Cir.1938). The requirement that a fiduciary be charged with knowledge of his or her duties and of the law “prevents ignorance of the law from becoming a defense to nondischargeability and provides an incentive for individuals ... who are engaged in occupations subject to special statutes to apprise themselves of their obligations under the law.” Johnson, 691 F.2d at 257. It ensures that fiduciaries will perform their obligations “faithfully and with care.” Niles, 106 F.3d at 1462 (citing Restatement (Second) of Trusts § 172 (1959); Restatement (Second) of Agency § 382 (1958)); see Restatement (Second) of Trusts § 174(1959). Furthermore, it is generally recognized that Judge Hand’s analysis in Central Hanover that “defalcation” applies to conduct that does not reach the level of fraud, embezzlement, misappropriation, or larceny is accurate. See, e.g., In re Schwager, 121 F.3d 177, 184 (5th Cir.1997); Ansari, 113 F.3d at 20; Quaif, 4 F.3d at 955; Moreno v. Ashworth (In re Moreno), 892 F.2d 417, 421 (5th Cir. 1990); Carey, 615 F.2d at 376; Turner, 134 B.R. at 658; Currin, 55 B.R. at 934; Nat’l Bonding & Accident Ins. Co. v. Petersen (In re Petersen), 51 B.R. 486, 488-89 (Bankr.D.Kan.1985); 4 Collier on Bankruptcy 523.10[1][b] (Lawrence P. King ed., 15th ed.rev.1997); 3 Norton Bankr. Law & Practice 2d 47:27 (William L. Norton, Jr. ed., 1997) [hereinafter Norton]. This makes sense because, as recognized by Judge Hand in Central Hanover, 93 F.2d at 512, the words “fraud,” “embezzlement,” and “larceny” in section 523(a)(4) must have a different meaning than the word “defalcation,” and “defalcation” seems to be more encompassing than the other bad acts listed in that section. Johnson, 691 F.2d at 254. The courts are divided, however, on the issue of what level of mental" }, { "docid": "20274664", "title": "", "text": "266 B.R. 686, 693 (Bankr.N.D.Ill.2001). Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. A. 11 U.S.C. § 523(a)(4) Section 523(a)(4) provides as follows: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt— (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny[.] 11 U.S.C. § 523(a)(4). The meaning of these terms is a question of federal law. In re Burke, 398 B.R. 608, 625 (Bankr.N.D.Ill.2008) (citing In re McGee, 353 F.3d 537, 540 (7th Cir.2003)). Most courts apply the general rule that the creditor bears the burden of proof in a proceeding to determine the dischargeability of a debt under section 523(a)(4). Fowler Bros. v. Young (In re Young), 91 F.3d 1367 (10th Cir.1996); Coburn Co. v. Nicholas (In re Nicholas), 956 F.2d 110 (5th Cir.1992); 4 Collier, ¶ 523.10[1][c], “Fraud” for purpose of this exception has generally been interpreted as involving intentional deceit, rather than implied or constructive fraud. In re Tripp, 189 B.R. 29 (Bankr.N.D.N.Y.1995); In re McDaniel, 181 B.R. 883 (Bankr.S.D.Tex.1994); 4 Collier on Baniíruptcy 1523.10[1][a] (15th ed.2008). “Defalcation” is not defined in the Bankruptcy Code, but the term “defalcation” has been used in the Bankruptcy Code since 1841. Meyer v. Rigdon, 36 F.3d 1375, 1382-83 (7th Cir.1994) (citing Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511 (2d Cir.1937) (the leading case defining “defalcation”)). Judge Learned Hand in Herbst concluded that while a purely innocent mistake by the fiduciary may be dischargeable, a “defalcation” for purposes of this statute does not have to rise to the level of “fraud,” “embezzlement,” or even “misappropriation.” Meyer, 36 F.3d at 1384 (citing Herbst, 93 F.2d at 512). The Seventh Circuit held that defalcation requires reckless conduct. Id. at 1385; In re Howard, 339 B.R. 913, 920-21 (Bankr.N.D.Ill.2006); 4 Collier, ¶ 523.10[1][b]. The Seventh Circuit has found that a fiduciary relationship exists for purposes of section 523(a)(4) when there is “a difference in knowledge or power between fiduciary and principal which ... gives the former a position of ascendancy" }, { "docid": "4796345", "title": "", "text": "Dawley v. Gould (In re Gould), 65 B.R. 87 (Bankr.N.D.N.Y.1986) (and cases cited therein); In re Grosso, supra, 9 B.R. at 820-821. Hence, “the core requirements ... that the relationship exhibit characteristics of the traditional trust relationship and that the fiduciary duties be created before the account of wrongdoing and not as a result of the act of wrongdoing” are satisfied. Teichman v. Teichman (In re Teichman), 774 F.2d 1395, 1399 (9th Cir.1985) (citations omitted). See also Davis v. Aetna Acceptance Co., supra, 293 U.S. at 333, 55 S.Ct. at 153. However, Code § 523(a)(4) also requires the creditor to prove that the debt arose through “fraud or defalcation while acting in a fiduciary capacity.” Thus, Groves must prove that the debt was created through Debtor’s fraud or defalcation in breach of the fiduciary duty owed Groves, as subrogee of the trust fund beneficiaries. “Proof of defalcation does not require evidence of any intentional wrong by the debtor. Whereas fraud under the Bankruptcy Code ‘refers to positive fraud, involving moral turpitude,’ ... defalcation is broadly defined to include ‘failure of a fiduciary to account for money he received in his fiduciary capacity’ regardless of the fact that such failure may have resulted from ignorance or negligence.” In re Gans, supra, 75 B.R. at 490 (quoting In re Wolfington, 47 B.R. 762, 764 (Bankr.E.D.Pa.1985). See also Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2d Cir.1937) (J. Learned Hand); Orem Postal Credit Union v. Twitchell (In re Twitchell), 72 B.R. 431, 434-436 (Bankr.D.Utah 1987); Gonzales v. Raiser Construction Co. (In re Gonzales), 22 B.R. 58, 59 (Bankr. 9th Cir.1982). Furthermore, the standard of proof as to defalcation is preponderance of the evidence while fraud requires the plaintiff to prove each element by clear and convincing evidence. See In re Gans, supra, 75 B.R. at 484; Trell v. Dunlevy (In re Dunlevy), 75 B.R. 914, 917 (Bankr.S.D.Ohio 1987). While the “badness” of fraud is much more obvious than an act of defalcation, which is evaluated by an objective standard wherein bad faith is irrelevant, both kinds of wrongful behavior" }, { "docid": "4796346", "title": "", "text": "defined to include ‘failure of a fiduciary to account for money he received in his fiduciary capacity’ regardless of the fact that such failure may have resulted from ignorance or negligence.” In re Gans, supra, 75 B.R. at 490 (quoting In re Wolfington, 47 B.R. 762, 764 (Bankr.E.D.Pa.1985). See also Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2d Cir.1937) (J. Learned Hand); Orem Postal Credit Union v. Twitchell (In re Twitchell), 72 B.R. 431, 434-436 (Bankr.D.Utah 1987); Gonzales v. Raiser Construction Co. (In re Gonzales), 22 B.R. 58, 59 (Bankr. 9th Cir.1982). Furthermore, the standard of proof as to defalcation is preponderance of the evidence while fraud requires the plaintiff to prove each element by clear and convincing evidence. See In re Gans, supra, 75 B.R. at 484; Trell v. Dunlevy (In re Dunlevy), 75 B.R. 914, 917 (Bankr.S.D.Ohio 1987). While the “badness” of fraud is much more obvious than an act of defalcation, which is evaluated by an objective standard wherein bad faith is irrelevant, both kinds of wrongful behavior invoke the Code § 523(a)(4) exception to dischargeability. See Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 256 (6th Cir.1982); In re Twitchell, supra, 72 B.R. at 436. The record before the Court discloses the Debtor’s acknowledgment of the subrogated claim status of the $9,097.24 Groves paid into the Fund on her behalf. Her admitted failure to make these Fund payments, whether through ignorance or negligence, constitutes defalcation within the meaning of Code § 523(a)(4), rendering the sum a nondischargeable debt. Therefore, the Court need not make an inquiry into the fraud category of Code § 523(a)(4) with respect to these monies. This brings the Court to the Debtor’s second request regarding the limitation of Groves’ claim to the monies it paid into the Funds. Groves alleges that it additionally expended some $98,793.00 to complete the Debtor’s work in D250416 and D250417 after her termination by using its own forces and those of a different subcontractor. The Debtor counters that if Groves is found liable on its counterclaim for breach of contract," }, { "docid": "19819292", "title": "", "text": "exception to discharge applies. See In re Mitchell, 633 F.3d 1319, 1327 (11th Cir.2011) (citations omitted). In the underlying adversary proceeding, the Bank asked the bankruptcy court to find the Illinois judgment debt to be nondischargeable under § 523(a)(4). The bankruptcy court concluded that the debt was not dischargeable because the Bank had established that the debt arose from fraud or defalcation while Bullock was acting in a fiduciary capacity. The parties do not dispute that the judgment debt arose from conduct that occurred while Bullock was acting in a fiduciary capacity (i.e., while he was the trustee of his father’s trust). Furthermore, at oral argument, Bullock appeared to concede that he was collaterally estopped from attacking the Illinois judgment to the extent that the Illinois court concluded that he breached his fiduciary duty as the trustee of his father’s trust by engaging in self-dealing via the three loans. Thus, the issue before this Court is whether the bankruptcy court correctly characterized Bullock’s conduct as fraud and/or defalcation under § 523(a)(4). Upon consideration, we find that Bullock’s conduct constituted defalcation under § 523(a)(4). This Court has stated that a “ ‘[defalcation’ refers to a failure to produce funds entrusted to a fiduciary” and that “the precise meaning of ‘defalcation’ for purposes of § 523(a)(4) has never been entirely clear.” Quaif v. Johnson, 4 F.3d 950, 955 (11th Cir.1993) (citations omitted). However, this Court has referred to the Second Circuit’s decision in Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2d Cir.1937), as containing “perhaps the best” analysis of the meaning of “defalcation” under § 523(a)(4). Quaif, 4 F.3d at 955; see also In re Fernandez-Rocha, 451 F.3d 813, 817 (11th Cir.2006). In Central Hanover, an issue before the court was whether Herbst, who had been appointed as a receiver for real property in a foreclosure action, had committed a defalcation when he withdrew money that the court had awarded him as payment for his services as receiver before the time to appeal the order awarding him the money had expired. See Central Hanover, 93 F.2d at 511." }, { "docid": "18601462", "title": "", "text": "Rigdon contends that the FDIC’s complaint does not allege that he engaged in acts of “defalcation” within the meaning of section 523(a)(ll). Specifically, Rigdon argues that mere acts of negligence are not “defalcations.” “Defalcation” is not defined in the Bankruptcy Code. Nor does the legislative history of section 523(a)(ll) shed any light on congressional intent as to how it should be interpreted. However, the term “defalcation” has been used in the Bankruptcy Code since 1841. Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511 (2d Cir.1937). Therefore, we can assume that Congress intended to give the term “defalcation,” as it is used in section 523(a)(ll), the same meaning that courts have given it in interpreting other provisions of the Bankruptcy Code. The leading case defining “defalcation” is Central Hanover Bank & Trust Co. v. Herbst. In that case, Judge Learned Hand noted that “[c]olloquially perhaps the word, ‘defalcation,’ ordinarily implies some moral dereliction, but in this context it may have included innocent defaults, so as to include all fiduciaries who for any reason were short in their accounts.... Whatever was the original meaning of ‘defalcation,’ it must here have covered other defaults than deliberate malversations, else it added nothing to the words, ‘fraud or embezzlement.’ ” Id. at 511. The court went on to state, however, that “[w]e do not hold that no possible deficiency in a fiduciary’s accounts is dischargeable; in [In] re Bernard, 87 F.2d 705, 707 [(2nd.Cir.1937)], we said that ‘the misappropriation must be due to a known breach of duty, and not to mere negligence or mistake.’ Although that word [misappropriation] probably carries a larger implication of misconduct than ‘defalcation,’ ‘defalcation’ may demand some portion of misconduct; we will assume arguendo that it does.” Id. at 512. In interpreting Herbst, courts have split over the question of whether mere negligent acts may be “defalcations.” In In re Johnson, 691 F.2d 249 (6th Cir.1982), the court adopted an “objective standard for finding a defalcation.” Id. at 255. Under this standard, the bankruptcy petitioner is charged with knowledge of the law and his intent or" }, { "docid": "18534117", "title": "", "text": "within the meaning of 11 U.S.C. § 523(a)(4). The Sixth Circuit in Interstate Agency articulated the following definition of “defalcation”: “ ‘Defalcation’ is defined as encompassing embezzlement, the ‘misappropriation of trust funds held in any fiduciary capacity’ and the ‘failure to properly account for such funds.’ ” 760 F.2d at 125 (quoting BLACK’S LAW DICTIONARY at 375 (5th ed. 1979)). It has long been held that to establish defalcation one need not prove intentional misconduct on the fiduciary’s part. Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511-12 (2d Cir.1937) (interpreting the term defalcation against the backdrop of the Bankruptcy Acts of 1800,1841 and 1898). Following Judge Learned Hand’s decision in the seminal Central Hanover Bank case, the Sixth Circuit stated that “creating a debt by breáching a fiduciary duty is a sufficiently bad act to invoke the section 17(a)(4) exception [to discharge] even without a subjective mental state evidencing intent to breach a known fiduciary duty or bad faith in doing so.” Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 256 (6th Cir.1982) (interpreting 17(a)(4) of the former Bankruptcy Act). The Johnson court imposed “[a]n objective standard for finding a defalcation, that does charge a bankrupt with knowledge of the law and that does not weigh intent or motive.” Id. at 255-56. Such an objective standard, the Sixth Circuit concluded, “is consistent with the policy behind the bankruptcy laws of giving an honest debtor the opportunity for economic rehabilitation.” Id. See also, Goldberg v. Wolfington (In re Wolfing-ton), 47 B.R. 762, 764 (Bankr.E.D.Pa.1985) (“It is irrelevant that the default by the fiduciary was innocent.”); Orem Postal Credit Union v. Twitchell (In re Twitchell), 72 B.R. 431, 435 (Bankr.D.Utah 1987) (defalcation includes innocent or simple defaults or mere failures to account for funds); Schwalbe v. Gans (In re Gans), 75 B.R. 474, 490 (Bankr.S.D.N.Y.1987) (defalcation is broadly defined to include a fiduciary’s failure to account for money he received in his fiduciary capacity regardless of the fact that such failure may have resulted from ignorance or negligence); Morales v. Codias (In re Codias), 78" }, { "docid": "23423178", "title": "", "text": "conduct that does not reach the level of fraud, embezzlement, misappropriation, or larceny is accurate. See, e.g., In re Schwager, 121 F.3d 177, 184 (5th Cir.1997); Ansari, 113 F.3d at 20; Quaif, 4 F.3d at 955; Moreno v. Ashworth (In re Moreno), 892 F.2d 417, 421 (5th Cir. 1990); Carey, 615 F.2d at 376; Turner, 134 B.R. at 658; Currin, 55 B.R. at 934; Nat’l Bonding & Accident Ins. Co. v. Petersen (In re Petersen), 51 B.R. 486, 488-89 (Bankr.D.Kan.1985); 4 Collier on Bankruptcy 523.10[1][b] (Lawrence P. King ed., 15th ed.rev.1997); 3 Norton Bankr. Law & Practice 2d 47:27 (William L. Norton, Jr. ed., 1997) [hereinafter Norton]. This makes sense because, as recognized by Judge Hand in Central Hanover, 93 F.2d at 512, the words “fraud,” “embezzlement,” and “larceny” in section 523(a)(4) must have a different meaning than the word “defalcation,” and “defalcation” seems to be more encompassing than the other bad acts listed in that section. Johnson, 691 F.2d at 254. The courts are divided, however, on the issue of what level of mental culpability the debtor-fiduciary must have to commit a “defalcation” under section 523(a)(4). Some courts have held that no mental culpability is required. “Defalcation” includes intentional, reckless, and negligent breaches of a fiduciary duty, so as to reach the conduct of fiduciaries who are short in their accounts in any way; the requisite badness being a breach of an elevated standard of care applicable to fiduciaries. See, e.g., Lewis, 97 F.3d at 1186; Failing, 124 B.R. at 344; Kwiat v. Doucette, 81 B.R. 184, 189-90 (D.Mass.1987); Waskew, 191 B.R. at 37; Kaczynski, 188 B.R. at 777-78; Central Bank v. Olinger (In re Olinger), 165 B.R. 283, 285-86 (Bankr.D.Colo.1994); Peerless Ins. Co. v. Misiaszek (In re Misiaszek), 162 B.R. 80, 82 (Bankr.D.N.H.1993); LaPointe v. Brown (In re Brown), 131 B.R. 900, 904 (Bankr.D.Me.1991); Erie Materials, Inc. v. Oot (In re Oot), 112 B.R. 497, 501 (Bankr.N.D.N.Y.1989); Schwalbe v. Gans (In re Gans), 75 B.R. 474, 490 (Bankr.S.D.N.Y.1987); Orem Postal Credit Union v. Twitched (In re Twitched), 72 B.R. 431, 435-36 (Bankr.D.Utah 1987), rev’d on other grounds, 91" }, { "docid": "3701786", "title": "", "text": "a plaintiffs factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiffs claim.” Brooks, 578 F.3d at 581. Section 523(a) (4) Claim Under Section 523(a)(4), “(a) A discharge under section 727 ... does not discharge an individual debtor from any debt-.... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny[.]” 11 U.S.C.A. § 523(a)(4) (West 2009). The meaning of these terms is a question of federal law. Delic v. Brown (In re Brown), No. 08-A-00936, 2009 WL 2461241, at *5 (Bankr.N.D.Ill. Aug.11, 2009) (citing In re McGee, 353 F.3d 537, 540 (7th Cir.2003)). “Fraud” for purpose of this exception has generally been interpreted as involving intentional deceit, rather than implied or constructive fraud. Brown, 2009 WL 2461241, at *5 (citing In re Tripp, 189 B.R. 29 (Bankr.N.D.N.Y.1995); In re McDaniel, 181 B.R. 883 (Bankr.S.D.Tex.1994); 4 COLLIER ON BANKRUPTCY 523.10[1][a] (15th ed.2008)). “Defalcation” is not defined in the Bankruptcy Code, but the term “defalcation” has been used in the Bankruptcy Code since 1841. Meyer v. Rigdon, 36 F.3d 1375, 1382-83 (7th Cir.1994) (citing Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511 (2d Cir.1937)). It has sometimes been defined by courts as the misappropriation of funds held in trust for another in any fiduciary capacity, and the failure to properly account for such funds. See In re Burke, 405 B.R. 626 (Bankr.N.D.Ill. June 10, 2009) (citing Strube Celery & Vegetable Co., Inc. v. Zois (In re Zois), 201 B.R. 501, 506 (Bankr.N.D.Ill. 1996)). Intent to misappropriate is not required, but the misappropriation must be more than mere negligence or mistake. In re Burke, 405 B.R. at 649 (citing Meyer, 36 F.3d at 1385). The Seventh Circuit has held that defalcation requires at least reckless conduct. Meyer, 36 F.3d at 1385; Brown, 2009 WL 2461241, at *5; 4 COLLIER, 523.10[1][b]. The Plaintiff alleges that the Debtor breached his fiduciary duty to 10th Inning by using its assets for his own purposes when he caused the auction proceeds to" }, { "docid": "13712528", "title": "", "text": "Fifth, Sixth, and Seventh Circuits, require fault at least greater than mere negligence. Schwager v. Fallas (Matter of Schwager), 121 F.3d 177, 185 (5th Cir.1997) (“defalcation is a willful neglect of fiduciary duty ... while defalcation may not require actual intent, it does require some level of mental culpability”); LSP Investment Partnership v. Bennett (Matter of Bennett), 989 F.2d 779, 790 (5th Cir.1993) (“defalcation is a willful neglect of duty”); Sheerin v. Davis (Matter of Davis), 3 F.3d 113, 115 (5th Cir. 1993); Moreno v. Ashworth (Matter of Moreno), 892 F.2d 417, 421 (5th Cir.1990); Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 254-57 (6th Cir.1982) (interpreting § 523(a)(4)’s predecessor, § 17(a)(4), explaining that while no intent nor “actual knowledge” of illegality is required for defalcation, the conduct must rise above “mere negligence”); Meyer v. Rigdon, 36 F.3d 1375, 1384-85 (7th Cir.1994) (interpreting defalcation under § 523(a)(ll), “a mere negligent breach of fiduciary duty is not a defalcation”). Moreover, while the Eleventh Circuit is less explicit on this issue, it has held, in finding defalcation under § 523(a)(4), that the conduct of the debtor “was far more than an innocent mistake or even negligence” (debtor had failed to pay money held in trust for creditor, and instead transferred the funds to the operating and payroll accounts of the business for which he was the sole shareholder). Quaif v. Johnson, 4 F.3d 950, 955 (11th Cir.1993). While the First Circuit has not ruled on this issue, two bankruptcy court decisions within the last year in the circuit have ruled that defalcation requires a degree of fault greater than negligence. In re Baylis, 222 B.R. 1; In re Sullivan, 217 B.R. 670.. For an excellent analysis of the sharp split among lower courts on this issue, see In re Ellenbogen, 218 B.R. 709. The only Second Circuit decision to deal directly with this question is less than definitive. Central Hanover Bank & Trust v. Herbst, 93 F.2d 510 (2d Cir.1937) (interpreting § 17(a)(4), the predecessor to § 523(a)(4)). Those who advocate a broad interpretation of “defalcation,” so as to" }, { "docid": "15580141", "title": "", "text": "bad faith or engaged in intentional misconduct. In fact in Gonzales, the Panel rejected the debtor’s contention that there was no defalcation because the failure to account for the funds was unintentional. In Baird, the fact that the debtor may have acted in accordance with common industry practice did not prevent a finding of defalcation. Although, as the majority suggests, there are arguable policy reasons supporting a restricted definition of the term defalcation, there are also policy reasons supporting a determination that defalcation should include innocent defaults by a fiduciary. Even if nondischargeable debts must arise from some culpable conduct, the requisite culpability or “badness” to conform to the spirit of the bankruptcy laws is supplied by the special legal status of a fiduciary and the breach of the attendant duties and higher standard of dealing. See In re Johnson, 691 F.2d 249, 256 (6th Cir.1982); In re Twitchell, 72 B.R. 431, 436 (Bankr.D.Utah 1987), rev’d 91 B.R. 961 (D.Utah 1988), rev’d without op. 892 F.2d 86 (10th Cir.1989); see also Restatement (Second) of Torts § 874, comment b (one who commits a breach of fiduciary duty is guilty of tortious conduct). In addition, in other provisions of the Bankruptcy Code, Congress has provided special protection for those in a trust relationship with the debtor. See § 541(d). A recognition that debts arising from any breach of such trust relationships are nondischargeable is consistent with this special protection. The majority’s standard of some element of bad faith or reprehensible conduct is, I believe, flawed. The majority does not explain what level of culpability is required. Is reckless conduct sufficient or must the conduct be intentional tortious conduct? If intentional tortious conduct is required, the majority’s standard renders section 523(a)(4) unnecessary in light of the broad definition of willful and malicious conduct applied under 11 U.S.C. § 523(a)(6). See, e.g., In re Cecchiwi, 780 F.2d 1440, 1443 (9th Cir.1986). Finally, what would be the result when a trustee does not adequately supervise his or her employees and funds are misdirected through the intentional misconduct of the employee? Arguably, the fact that" }, { "docid": "20948689", "title": "", "text": "ignorance, no less a defalcation. Id.)-, Old Republic Surety Co. v. Richardson (In re Richardson), 178 B.R. 19, 29 (Bankr.D.Dist.Col.1995) (defalcation does not include mere negligence or mistake of fact; but a fiduciary is charged with knowledge of the law, so an intentional act in violation of fiduciary duty, even if based on a mistake of law, is nonetheless a defalcation). . Matter of Moreno, 892 F.2d 417, 421 (5th Cir. 1990), citing L. King, 3 Collier on Bankruptcy ¶ 523.14, at 523-93 to 523-95 (15th ed. 1988), quoting Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510 (2d Cir. 193 7) (L. Hand, J.); and Jacobs v. Pierce, 173 B.R. 20, 25 (D.Mass. 1994). . In re Martin, 161 B.R. 672, 678 (9th Cir. BAP 1993) (\"We ... hold that the mere failure to use ordinary care in accounting for an asset does not per se constitute \"defalcation” within the scope of § 523(a)(4). There simply must be a showing of some element of bad faith or reprehensible conduct for nondischargeability under § 523(a)(4).”), expressly overruled in Lewis v. Scott (In re Lewis), 97 F.3d 1182 (9th Cir.1996) (\"defalcation ‘includes the innocent default of a fiduciary who fails to account fully for money received’ ”). . See, for example, Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 254-257 (6th Cir.1982), adopting \"an objective standard” that, regardless of actual knowledge, charges a debtor with knowledge of the law, and that does not weigh intent or motive. See also Houston v. Capps (In re Capps), 193 B.R. 955, 963-965 (Bankr.N.D.Ala.1995) (defalcation “does not have to be the result of intentional wrongdoing or have been motivated by criminal intent, ill will, malice, bad faith, or the subjective intent to violate a known fiduciary duty”) and cases cited; and Peerless Insurance Co. v. Misiaszek (In re Misiaszek), 162 B.R. 80, 82 (Bankr.D.N.H.1993) (Yacos, J.) (\"My view is that even if misconduct is defined as element of defalcation, it can be equated with a failure to observe clear and specific restrictions and limitations upon the fiduciary in either the" }, { "docid": "7471411", "title": "", "text": "Eighth Circuit in holding that the attorney-client relationship, without more, constitutes a fiduciary relationship within the meaning of Section 523(a)(4). See Cochrane, 124 F.3d at 984; see also Marchiando, 13 F.3d at 1115 (stating, in dictum, that attorney-client relationship is fiduciary relationship under Section 523(a)(4)). Further, for the reasons stated above, we hold that the attorney’s fiduciary obligation extends to matters involving fee agreements. We therefore turn to the question of whether the debt was the result of a defalcation. b) Defalcation As noted, the term defalcation has appeared in every bankruptcy act since 1841. Despite its longstanding use, however, its precise meaning remains unclear. See In re Twitchell, 72 B.R. 431, 434 (Bankr.D.Utah 1987) (“The term ‘defalcation’ ... does not have a precise definition and no legislative history or comment exists to aid the interpretation.”), rev’d, 91 B.R. 961 (D.Utah 1988), rev’d, 892 F.2d 86 (10th Cir.1989) (table). The first significant effort to define the term was undertaken by Judge Learned Hand in Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511-12 (2d Cir.1937). Herbst was a dentist who had been appointed receiver of a parcel of land in a foreclosure suit. He received $42,000 in allowances and, when the property was sold, asked for and was granted by the court an additional $5,674.54, which he promptly spent. Upon appeal, the allowance was denied, and the Court of Appeals of New York held that Herbst’s surety must pay the deficiency judgment against him. The surety’s subrogation action against Herbst was then brought in federal court. Judge Hand’s opinion held that the shortcoming constituted a defalcation. He noted that “[c]olloquially perhaps the, word, ‘defalcation,’ ordinarily implies some moral dereliction, but in this context it may have included innocent defaults, so as to include all fiduciaries who for any reason were short in their accounts. It must be remembered that the ‘fiduciary capacity’ was limited to ‘special’ or ‘technical’ fiduciaries.” Id. at 511 (citing Chapman, 43 U.S. at 208). In the court’s view, the case did not involve wholly innocent conduct. Herbst had committed a defalcation because: A" }, { "docid": "6443538", "title": "", "text": "That court affirmed the FDIC’s removal of two officers and directors of the Bank of Hoven, South Dakota, for breach of their fiduciary duties. Id. at 1202. See also Lane v. Chowning, 610 F.2d 1385, 1388-89 (8th Cir.1979) (“it is well settled that the fiduciary duty of a bank officer or director is owed to the depositors and the shareholders of the bank ... ”). The second requirement pursuant to Section 523(a)(4) is the commission of a defalcation. There is no precise definition of the term, “defalcation.” It is often used to describe a broad variety of conduct, including “failure to meet an obligation; misappropriation of trust funds or money held in any fiduciary capacity; failure to properly account for such funds.” In re Anderson, 64 B.R. 331, 334 (Bankr.N.D.Ill.1986), quoting In re Alvey, 56 B.R. 170, 173 (Bankr.W.D.Ky.1985). More simply, to prove a defalcation, it must be shown that the underlying trust fund was used for a purpose other than that contemplated by the trust. See In re Gans, 75 B.R. 474, 490 (Bankr.S.D.N.Y.1987). The cases are in agreement that defalcation is evaluated by an objective standard, and that no element of intent or bad faith need be shown. In re Johnson, 691 F.2d at 254-55; In re Codias, 78 B.R. 344, 346 (Bankr.S.D.Fla.1987); In re Gans, 75 B.R. at 490; In re Twitchell, 72 B.R. at 435. In Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511 (2d Cir.1937), Judge Hand analyzed the use of the term, “defalcation,” in a predecessor statute to Section 523(a)(4). He stated that “[wjhatever was the original meaning of ‘defalcation,’ it must here have covered other defaults than deliberate malversations, else it added nothing to the words, ‘fraud or embezzlement.’ ” Id. Thus, defalcation is generally held to be a much broader term that either embezzlement or misappropriation, and does not need to be intentional conduct. See In re Johnson, 691 F.2d at 254; In re Kelley, 84 B.R. 225, 230 (Bankr.M.D.Fla.1988); In re Twitchell, 72 B.R. at 435. In the present case, the federal jury found beyond a reasonable" } ]

[ { "docid": "22220778", "title": "", "text": "24, 1789, c. 20, § 9, 1 Stat. 73, 77; Rev. Stats., § 563 (8); Judicial Code, § 24 (3), 36 Stat. 1087, 1091, c. 231. In defining the bounds of the civil jurisdiction, this court from an early day has rejected those trammels that arose from the restrictive statutes and judicial prohibitions of England. Waring v. Clarke, 5 How. 441, 457-459; Insurance Co. v. Dunham, 11 Wall. 1, 24; The Lottawanna, 21 Wall. 558, 576. It must be taken to be the settled law of this court that while the civil jurisdiction of the admiralty in matters of tort depends upon locality — whether the act was committed upon navigable waters — in .matter of contract it. depends upon the subject-matter — the nature and character of the contract; and that the English rule, which conceded jurisdiction, with a few exceptions, only to contracts 'made and to be executed upon the navigable waters, is inadmissible, the true criterion being the nature of the contract, as to whether it have reference to maritime' service or maritime transactions. People’s Ferry Co. v. Beers, 20 How. 393, 401; Philadelphia, Wilmington & Baltimore R. R. Co. v. Philadelphia, &c. Steam Towboat Co., 23 How. 209, 215; Insurance Co. v. Dunham, 11 Wall. 1, 26; The Eclipse, 135 U. S. 599, 608. In some of the earlier cases the influence of the English rule may be discerned, in that the question whether a contract was to be performed upon the navigable waters was referred to as pertinent to the question whether the contract was of a maritime nature (The Thomas Jefferson, 10 Wheat. 428, 429; The Planter [Peyroux v. Howard], 7 Pet. 324, 341; Steamboat Orleans v. Phœbus, 11 Pet. 175, 183; New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344, 392); but a careful examination of the opinions shows that the place of performance was dealt with as an evidential circumstance bearing with more or less weight upon the fundamental question of the nature of the contract. If they go beyond this, they must be deemed to be overruled by Insurance" } ]

[ { "docid": "20729976", "title": "", "text": "the letters were not maritime contracts and that the court therefore lacked admiralty jurisdiction over them. Village of Bald Head Island, 833 F.Supp.2d at 534-35. We agree with the district court. In Count VII, the Village alleged that the DeLony letter of June 9, 2000, “eonsti-tute[d] a valid and enforceable express or implied contract between the Village and the Corps” to deposit the spoils of maintenance dredging on adjacent beaches every two years and to take other steps, as necessary, to prevent the project from causing the beaches harm. And in Count VIII, the Village similarly alleged that the Moffitt letter of June 15, 2000, constituted a valid and enforceable contract between the North Carolina Division of Coastal Management and the Corps for the same purposes. We conclude that such contracts— to nourish area beaches with dredged sand and to protect them from further erosion—are not maritime contracts. The Supreme Court has recognized that the “boundaries of admiralty jurisdiction over contracts” are “conceptual rather than spatial,” so that whether a contract qualifies as maritime “depends upon [its] nature and character”—namely, “whether it has reference to maritime service or maritime transactions.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23-24, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (internal quotation marks omitted). In this respect, the Court has explained that the “fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce” and that “[t]he conceptual approach vindicates that interest by focusing [the] inquiry on whether the principal objective of a contract is maritime commerce.” Id. at 25, 125 S.Ct. 385 (second emphasis added) (internal, quotation marks omitted). It is clear that the “principal objective” of the contracts claimed by the Village was not “maritime commerce,” but the preservation of area beaches. Indeed, the Village expressly alleged that it “entered into negotiations with the Corps and [the North Carolina Department of Environment and Natural Resources] in an effort to reach agreement on project conditions or measures that would protect Bald Head Island or address project impacts.” (Emphasis added). To be sure, the principal purpose of the Wilmington Harbor Project" }, { "docid": "2571133", "title": "", "text": "(2d Cir.1942). Unfortunately, there are few “clean lines between maritime and non-maritime contracts.” Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. —, 125 S.Ct. 385, 393, 160 L.Ed.2d 283 (2004). The boundaries of admiralty jurisdiction over contracts are conceptual rathep than spatial, id. (quoting Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961)), and defined by the purpose of the jurisdictional grant — to protect maritime commerce, see Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991) (citing Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 24, 20 L.Ed. 90 (1870), and Sisson v. Ruby, 497 U.S. 358, 367, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990)). The Supreme Court has adopted a case-by-case approach in defining these boundaries, see Sisson, 497 U.S. at 372, 110 S.Ct. 2892 (Scalia, J., concurring), and has instructed that “[precedent and usage are helpful insofar as they exclude or include certain common types of contract,” Kossick, 365 U.S. at 735, 81 S.Ct. 886. While “ ‘[t]he precise categorization of the contracts that warrant invocation of the federal courts’ admiralty jurisdiction has proven particularly elusive,’ ” Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 301 (2d Cir.1987) (quoting CTI-Container Leasing Corp. v. Oceanic Operations Corp., 682 F.2d 377, 379 (2d Cir.1982)), the abiding instruction of the Supreme Court is that we should look to the contract’s “ ‘nature and character’ ” to see “whether it has ‘reference to maritime service or maritime transactions,’ ” Norfolk S. Ry. Co., 125 S.Ct. at 393 (quoting N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919)); see Dunham, 78 U.S. (11 Wall.) at 26. Therefore, the contract’s subject matter must be our focal point. See, e.g., Exxon Corp., 500 U.S. at 611, 111 S.Ct. 2071; Dunham, 78 U.S. (11 Wall.) at 29. A. A Threshold Inquiry Several of our cases, however, require that, prior to inquiring into the subject matter of the contract," }, { "docid": "2571134", "title": "", "text": "735, 81 S.Ct. 886. While “ ‘[t]he precise categorization of the contracts that warrant invocation of the federal courts’ admiralty jurisdiction has proven particularly elusive,’ ” Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 301 (2d Cir.1987) (quoting CTI-Container Leasing Corp. v. Oceanic Operations Corp., 682 F.2d 377, 379 (2d Cir.1982)), the abiding instruction of the Supreme Court is that we should look to the contract’s “ ‘nature and character’ ” to see “whether it has ‘reference to maritime service or maritime transactions,’ ” Norfolk S. Ry. Co., 125 S.Ct. at 393 (quoting N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919)); see Dunham, 78 U.S. (11 Wall.) at 26. Therefore, the contract’s subject matter must be our focal point. See, e.g., Exxon Corp., 500 U.S. at 611, 111 S.Ct. 2071; Dunham, 78 U.S. (11 Wall.) at 29. A. A Threshold Inquiry Several of our cases, however, require that, prior to inquiring into the subject matter of the contract, we first make a “threshold inquiry” into the subject matter of the dispute. Balfour, 85 F.3d at 74-75. “Before attempting to categorize contractual rights as maritime or non-maritime, a federal court must first consider whether an issue related to maritime interests has been raised.” Atlantic Mutual, 968 F.2d at 199; see Balfour, 85 F.3d at 74-75; cf. Thypin Steel Co. v. Asoma Corp., 215 F.3d 273, 278-79 (2d Cir.2000); Sirius Ins. Co. (UK) Ltd. v. Collins, 16 F.3d 34, 37 (2d Cir.1994). “Therefore, in examining whether admiralty jurisdiction encompasses a claim, a federal court must initially determine whether the subject matter of the dispute is so attenuated from the business of maritime commerce that it does not implicate the concerns underlying admiralty and maritime jurisdiction.” Atlantic Mutual, 968 F.2d at 200 (emphasis added). This Court has twice encountered disputes with “connection[s] with maritime commerce ... simply too speculative and attenuated to justify admiralty and maritime jurisdiction.” Id.; see Balfour, 85 F.3d at 74-75. In both Atlantic Mutual and Balfour, this Court considered claims for coffee" }, { "docid": "14954548", "title": "", "text": "equitable vacatur was proper, arguing that ProShipLine and EP-Team violated 9 U.S.C. § 8 by seeking maritime attachment without diligently pursuing arbitration in Singapore. The district court properly vacated the writ as to ProShipLine. The district court, however, abused its discretion by vacating the writ as it pertains to EP-Team individually- A A party may only seek Rule B attachment if the underlying claim satisfies admiralty jurisdiction under 28 U.S.C. § 1333. The Supreme Court explains that a contractual claim gives rise to Section 1333 admiralty jurisdiction when the underlying contract is “maritime in nature.” Norfolk S. Ry. Co. v. James N. Kirby, 543 U.S. 14, 26, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). To make this determination, we must examine a contract to determine “whether the principal objective of a contract is maritime commerce.” Id. at 25, 125 S.Ct. 385. In adopting this framework, the Supreme Court rejected the longstanding “spatial approach” to determining the maritime nature of contracts. Id. at 24-25, 125 S.Ct. 385. The Court instead held that a “conceptual approach” was needed because modern maritime commerce “is often inseparable from some land-based obligations.” Id. at 25, 125 S.Ct. 385. The conceptual approach acknowledges this modern reality by examining whether the contract references “maritime service or maritime transactions.” Id. at 24, 125 S.Ct. 385 (quoting N. Pac. S.S. Co. v. Hall Brothers Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 63 L.Ed. 510 (1919)). The district court here did not examine the Agreement as required by Norfolk Southern Railway Co. The district court instead applied analysis employed by a few cases in the Southern District of New York. These cases suggest that whether a contract is maritime for the purpose of admiralty jurisdiction hinges upon whether the contract involves specific vessels and specific transactions. See, e.g., Dolco Invs. v. Moonriver Dev., 486 F.Supp.2d 261, 267-68 (S.D.N.Y.2007). The district court concluded that the Agreement was not a maritime contract because it did not make “reference to specific vessels or voyages.” In so deciding, the district court abused its discretion. Norfolk Southern Railway Co. controls" }, { "docid": "2571132", "title": "", "text": "cover a variety of losses which may arise in .day-to-day general operations.” Id. at 533. Contrasting CGL insurance with “the three traditional forms of marine insurance — hull insurance, cargo insurance, and protection and indemnity insurance,” the court concluded that the CGL section “simply lacks the genuinely salty flavor necessary to constitute a maritime contract.” Id. (internal quotation marks omitted). The court declined to consider the SLL section. Id. at 533-34. It reasoned that, while admiralty jurisdiction exists “where the non-maritime elements are merely incidental in an otherwise maritime contract,” id. at 533 (citing Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 199 (2d Cir.1992) (hereinafter Atlantic Mutual) (internal quotation marks omitted)), “coverage under Section I can hardly be considered incidental to the \"Policy as a whole,” id. at 534. The court dismissed the compláint, and Folksamerica timely appealed. Discussion This appeal turns on what would seem a simple inquiry: Is the Policy a maritime contract giving rise to admiralty jurisdiction? See Jeffcott v. Aetna Ins. Co., 129 F.2d 582, 584 (2d Cir.1942). Unfortunately, there are few “clean lines between maritime and non-maritime contracts.” Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. —, 125 S.Ct. 385, 393, 160 L.Ed.2d 283 (2004). The boundaries of admiralty jurisdiction over contracts are conceptual rathep than spatial, id. (quoting Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961)), and defined by the purpose of the jurisdictional grant — to protect maritime commerce, see Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991) (citing Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 24, 20 L.Ed. 90 (1870), and Sisson v. Ruby, 497 U.S. 358, 367, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990)). The Supreme Court has adopted a case-by-case approach in defining these boundaries, see Sisson, 497 U.S. at 372, 110 S.Ct. 2892 (Scalia, J., concurring), and has instructed that “[precedent and usage are helpful insofar as they exclude or include certain common types of contract,” Kossick, 365 U.S. at" }, { "docid": "8410427", "title": "", "text": "928 F.2d 164, 165 (5th Cir.1991) (“The waters become murky when we seek the precise parameters of a maritime contract.”); Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393, 393-94 (5th Cir.1991) (“Once more we embark on a voyage through the familiar marshland area of the law set aside for classifying the oil and gas exploration services contract as wet or dry.”). Because the general contract does not provide for specific work to be done, it and the letter agreement are considered as a single contract. See Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 315 (5th Cir.1990). In ascertaining whether that contract is a maritime contract, we look to the “nature and subject-matter” of the contract and ask whether it has “reference to maritime service or maritime transactions.” New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. 1, 78 U.S. 1, 26-27, 20 L.Ed. 90 (1870); see Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 611, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991) (“[T]he nature and subject-matter of the contract at issue should be the crucial consideration in assessing admiralty jurisdiction.” (internal quotation omitted)). The contract need not, however, be purely one on the high seas. In a “maritime case about a train wreck,” the Supreme Court said that “[t]o ascertain whether a contract is a maritime one, we cannot look to whether a ship or other vessel was involved in the dispute, as we would in a putative maritime tort case.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18, 23, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). “Instead, the answer depends upon the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions.” Id. at 24, 125 S.Ct. 385 (internal quotation and alteration omitted). In this circuit, we utilize the two-part inquiry laid out in Davis & Sons, 919 F.2d 313, to determine whether a contract is maritime. We look both to the “historical treatment in the jurisprudence” as well as to six fact-specific factors: 1) what does" }, { "docid": "8410428", "title": "", "text": "of the contract at issue should be the crucial consideration in assessing admiralty jurisdiction.” (internal quotation omitted)). The contract need not, however, be purely one on the high seas. In a “maritime case about a train wreck,” the Supreme Court said that “[t]o ascertain whether a contract is a maritime one, we cannot look to whether a ship or other vessel was involved in the dispute, as we would in a putative maritime tort case.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18, 23, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). “Instead, the answer depends upon the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions.” Id. at 24, 125 S.Ct. 385 (internal quotation and alteration omitted). In this circuit, we utilize the two-part inquiry laid out in Davis & Sons, 919 F.2d 313, to determine whether a contract is maritime. We look both to the “historical treatment in the jurisprudence” as well as to six fact-specific factors: 1) what does the specific work order in effect at the time of injury provide? 2) what work did the crew assigned under the work order actually do? 3) was the crew assigned to work aboard a vessel in navigable waters; 4) to what extent did the work being done relate to the mission of that vessel? 5) what was the principal work of the injured worker? and 6) what work was the injured worker actually doing at the time of injury? Id. at 316. Analyzing these factors, it is clear that Omni was instructed to fly workers to an oil platform, and that the workers were simple passengers on their way to the platform. We are left, however, with the central question of whether a contract to transport workers to an oil platform by helicopter is a maritime contract. Is the “nature and subject-matter” of transportation by helicopter a “maritime service”? Omni points us to tort cases where admiralty jurisdiction applies to helicopter accidents that occur over water. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207," }, { "docid": "2571130", "title": "", "text": "the Policy, rescission, and a declaration that it was not obligated to defend or indemnify Clean Water. Clean Water raised various defenses, a counterclaim seeking reformation of the Policy, and a challenge to the district court’s subject matter jurisdiction. Both sides moved for summary judgment. In defending the court’s admiralty jurisdiction, Folksamerica contended, “Since the Policy was issued to maritime companies, clearly covers their marine interests[,] and the underlying accident was on board a vessel in navigable waters, it is a policy of ‘marine insurance.’ ” The admiralty question had implications beyond conferring federal jurisdiction. Folksam-erica pressed the court to employ the federal maritime doctrine of uberrimae fide, or utmost good faith, which “provides that the parties to a marine insurance contract are held to the highest degree of good faith, whereby the party seeking insurance is required to disclose all circumstances known to it which materially affect the risk.” Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd. (In re Balfour MacLaine Int’l Ltd.), 85 F.3d 68, 80 (2d Cir.1996) (hereinafter Balfour) (internal quotation marks and brackets omitted). Folksamer-ica asserted that Clean Water failed to disclose that it performed tank cleaning on others’ vessels and that the Policy was therefore void. Clean Water argued that Folksamerica could not invoke admiralty jurisdiction. It characterized the CGL section of the Policy as a standard “all risk policy” and contended that the maritime risks covered by the Policy were “merely incidental” at best. The district court agreed. Folksamerica, 281 F.Supp.2d at 531. The court focused on the CGL section of the Policy and found it did not constitute “marine insurance.” Id. at 532-33. Relying on Benedict tin Admiralty, the court explained that, for a contract to have “ ‘maritime character,’ ” “ ‘there must be present a direct and proximate judicial link between the contract and the operation of the ship, its navigation or its management afloat.’ ” Id. at 532 (quoting BENEDICT on Admiralty § 182, at 11-7 (7th ed.1985)). The court characterized the CGL section as “a standard comprehensive general liability policy of the type used by many businesses to" }, { "docid": "16814708", "title": "", "text": "does not reserve a special jurisdic tion for maritime matters, or classify maritime matters as subject to a discrete body of laws, does not derogate from the policies of our law to provide for the adjudication of matters we regard as maritime in our federal courts. Id. at 160-61, 2014 WL 2609648 at *7. Based on the Supreme Court’s reasoning in Kirby and the on-point and persuasive opinion in D’Amico, we hold that federal law, rather than foreign law, controls the procedural inquiry into whether a foreign judgment is a maritime judgment. Thus, a claim to enforce a foreign maritime judgment is within the admiralty subject matter jurisdiction of United States courts when the claim underlying the judgment would be an admiralty or maritime claim under federal law. IV. A. Having determined that federal law controls our jurisdictional inquiry, we must now consider whether the FFAs at issue in this case are maritime contracts under federal law. If the FFAs are not maritime contracts, then the district court’s admiralty jurisdiction could not be invoked. “The boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). Whether a contract is maritime depends not upon “whether a ship or other vessel was involved in the dispute.” Kirby, 543 U.S. at 23, 125 S.Ct. 385. “Instead, the answer ‘depends upon ... the nature and character of the contract,’ and the true criterion is whether it has ‘reference to maritime service or maritime transactions.’ ” Id. at 24, 125 S.Ct. 385; see 1-XII Benedict on Admiralty § 182 (providing that “a contract relating to a ship in its use as such, or to commerce or navigation on navigable waters, or to transportation by sea or to maritime employment is subject to maritime law and the case is one of admiralty jurisdiction”). In consideration of this question, the district court stated, “Under federal law, it is clear that the question of whether the [FFAs]" }, { "docid": "20729977", "title": "", "text": "upon [its] nature and character”—namely, “whether it has reference to maritime service or maritime transactions.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23-24, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (internal quotation marks omitted). In this respect, the Court has explained that the “fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce” and that “[t]he conceptual approach vindicates that interest by focusing [the] inquiry on whether the principal objective of a contract is maritime commerce.” Id. at 25, 125 S.Ct. 385 (second emphasis added) (internal, quotation marks omitted). It is clear that the “principal objective” of the contracts claimed by the Village was not “maritime commerce,” but the preservation of area beaches. Indeed, the Village expressly alleged that it “entered into negotiations with the Corps and [the North Carolina Department of Environment and Natural Resources] in an effort to reach agreement on project conditions or measures that would protect Bald Head Island or address project impacts.” (Emphasis added). To be sure, the principal purpose of the Wilmington Harbor Project was to protect maritime commerce by ensuring that vessels could continue to access the port in Wilmington, North Carolina. But the alleged contracts—which were negotiated in response to the project in order to limit its impact on area beaches—were not designed to protect or engage in maritime commerce. Rather, they were sought to serve the recreational and aesthetic interests of the Village, as well as the property interests of property owners in the Village. Because the alleged contracts were not maritime contracts, the Village could not invoke the district court’s admiralty jurisdiction. Moreover, while we conclude that the contracts alleged in Counts VII and VIII were not maritime contracts, we have also concluded, as discussed above in connection with the Village’s APA claims, that the negotiations between the Village and thé Corps did not result in “binding commitments” that could be contractually enforced. See ante at 195-96. We therefore affirm the district court’s judgment dismissing the Village’s breach of maritime contract claims for lack of jurisdiction. AFFIRMED . It is also far from clear that" }, { "docid": "14131062", "title": "", "text": "S.Ct. 886, 6 L.Ed.2d 56 (1961) (“Precedent and usage are helpful insofar as they exclude or include certain common types of contract: a contract to repair or to insure a ship is maritime, but a contract to build a ship is not.” (citations omitted)); Royal Ins. Co., 738 F.2d at 1036. We have recognized repeatedly that marine insurance policies are maritime contracts for purposes of admiralty jurisdiction. See Simon v. Intercontinental Transp., 882 F.2d 1435, 1441 (9th Cir.1989) (citing New England Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 20 L.Ed. 90 (1870)); Royal Ins. Co., 738 F.2d at 1036; Stanley T. Scott & Co., Inc. v. Makah Dev. Corp., 496 F.2d 525, 526 (9th Cir.1974). Even so the label “marine insurance policy” alone is not enough to guarantee jurisdiction over a contract dispute. “For an insurance policy to be within admiralty jurisdiction, the interests insured, and not simply the risks insured against, must be maritime.” Royal Ins. Co., 738 F.2d at 1036. Thus, a policy covering a beach house against damage from the sea is not a maritime contract, but insurance for a vessel is clearly within the scope of admiralty jurisdiction. See id. at 1036-37. Barnes contends there is no admiralty jurisdiction over the policy because its limitation to the “inland waters of California only” means he is not allowed to use his boat on navigable waters. This argument clearly fails. Even if admiralty jurisdiction over marine insurance contracts depended on the navigability of the waters involved, jurisdiction would be proper in this case. California’s inland waters include the Sacramento River and the San Joaquin River, see Gray v. Reclamation Dist. No. 1500, 174 Cal. 622, 163 P. 1024, 1027 (1917), both of which are navigable. Nevertheless, the navigability of the waters is dispositive only in the tort context. See Sisson v. Ruby, 497 U.S. 358, 362, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990) (jurisdiction over tort cases depends on whether the incident has “a potentially disruptive impact on maritime commerce”); Victory Carriers, Inc. v. Law, 404 U.S. 202, 205-06, 92 S.Ct. 418, 30 L.Ed.2d 383" }, { "docid": "2571131", "title": "", "text": "marks and brackets omitted). Folksamer-ica asserted that Clean Water failed to disclose that it performed tank cleaning on others’ vessels and that the Policy was therefore void. Clean Water argued that Folksamerica could not invoke admiralty jurisdiction. It characterized the CGL section of the Policy as a standard “all risk policy” and contended that the maritime risks covered by the Policy were “merely incidental” at best. The district court agreed. Folksamerica, 281 F.Supp.2d at 531. The court focused on the CGL section of the Policy and found it did not constitute “marine insurance.” Id. at 532-33. Relying on Benedict tin Admiralty, the court explained that, for a contract to have “ ‘maritime character,’ ” “ ‘there must be present a direct and proximate judicial link between the contract and the operation of the ship, its navigation or its management afloat.’ ” Id. at 532 (quoting BENEDICT on Admiralty § 182, at 11-7 (7th ed.1985)). The court characterized the CGL section as “a standard comprehensive general liability policy of the type used by many businesses to cover a variety of losses which may arise in .day-to-day general operations.” Id. at 533. Contrasting CGL insurance with “the three traditional forms of marine insurance — hull insurance, cargo insurance, and protection and indemnity insurance,” the court concluded that the CGL section “simply lacks the genuinely salty flavor necessary to constitute a maritime contract.” Id. (internal quotation marks omitted). The court declined to consider the SLL section. Id. at 533-34. It reasoned that, while admiralty jurisdiction exists “where the non-maritime elements are merely incidental in an otherwise maritime contract,” id. at 533 (citing Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 199 (2d Cir.1992) (hereinafter Atlantic Mutual) (internal quotation marks omitted)), “coverage under Section I can hardly be considered incidental to the \"Policy as a whole,” id. at 534. The court dismissed the compláint, and Folksamerica timely appealed. Discussion This appeal turns on what would seem a simple inquiry: Is the Policy a maritime contract giving rise to admiralty jurisdiction? See Jeffcott v. Aetna Ins. Co., 129 F.2d 582, 584" }, { "docid": "11822043", "title": "", "text": "analysis as most recently set forth by the Supreme Court in Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). Norfolk Southern clarified the Supreme Court’s earlier choice of law analysis for maritime insurance contracts set forth in Wilburn Boat Co. v. Fireman’s Fund Insurance Co., 348 U.S. 310, 314, 75 S.Ct. 368, 99 L.Ed. 337 (1955). Norfolk Southern stated the general rule that “[w]hen a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation.” Id. at 22-23, 125 S.Ct. 385. This lawmaking power in the federal courts stems from the Constitution’s grant of admiralty jurisdiction to federal courts. See id. at 23, 125 S.Ct. 385; Wilburn Boat, 348 U.S. at 314, 75 S.Ct. 368; see also U.S. Const, art. III, § 2, cl. 1. This choice of law principle applies regardless of whether the basis for federal jurisdiction is admiralty jurisdiction, under 28 U.S.C. § 1333(1), or diversity, under id. § 1332. See Norfolk S. Ry., 543 U.S. at 23, 125 S.Ct. 385; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 411, 74 S.Ct. 202, 98 L.Ed. 143 (1953) (“[Substantial rights ... are not to be determined differently whether [a] case is labelled ‘law side’ or ‘admiralty side’ on a district court’s docket.”). There is no dispute this is a maritime insurance contract. We also agree that the prevailing view, under federal law and the law of most states, is that a breach of a promissory warranty in a maritime insurance contract excuses the insurer from coverage. See Commercial Union, 190 F.3d at 31 (“Under the federal rule and the law of most states, warranties in maritime insurance contracts must be strictly complied with, even if they are collateral to the primary risk that is the subject of the contract, if the insured is to recover.”); see also Yu v. Albany Ins. Co., 281 F.3d 803, 809 (9th Cir.2002) (noting that “rule that a marine insurer can avoid liability for breach of a ... warranty, regardless of whether that breach caused the" }, { "docid": "13243981", "title": "", "text": "a contract bears some of the markings of both tort and contract claims. On its face, however, the claim fails the test for maritime torts because any tort arising from MTC’s refusal to consent to the settlement proposed by ICT occurred on land rather than over navigable water. We therefore turn to the test for contract claims. Admiralty jurisdiction extends to claims that arise from contract if the subject matter of the contract is maritime in nature. North Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39 S.Ct. 221, 222, 63 L.Ed. 510 (1919); Hinkins S.S. Agency, Inc. v. Freighters, Inc., 498 F.2d 411, 412 (9th Cir.1974). An abstraction of the bound aries of this contract jurisdiction sufficient to offer concrete guidance in its application has failed to emerge. See Royal Ins. Co. of Am. v. Pier 39 Ltd. Partnership, 738 F.2d 1035, 1036 (9th Cir.1984). Instead, precedent has identified sets of commonly recurring contracts that are excluded or included in the jurisdiction. Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 890, 6 L.Ed.2d 56 (1961). The contracts forming the basis of Simon and Moss’ claim are the insurance policies by Mission and Majestic and the service agreements obligating MTC to adjust its own employees’ compensation claims. Our task is to compare these contracts with the established sets of maritime and nonmaritime contracts and to consider whether the interests underlying admiralty jurisdiction favor including the present action within the jurisdiction. See Royal Ins., 738 F.2d at 1036, 1038; Kennedy v. H & M Landing, Inc., 529 F.2d 987, 988-89 (9th Cir.1976) (per curiam). Marine insurance policies covering vessels engaged in maritime commerce and navigation have long been established as maritime contracts. The New England Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 20 L.Ed. 90 (1870). Whether policies insuring other activities or property with a maritime flavor qualify as maritime contracts depends upon the maritime nature of the interests that are insured as opposed to the nature of the covered risks. Royal Ins., 738 F.2d at 1036-37" }, { "docid": "2571142", "title": "", "text": "accomplish the transportation of goods by sea,” id. at 393. In pursuing this latter inquiry, the Court explained that a bill of lading’s “character as a maritime contract is not defeated simply because it also provides for some land carriage,” id. at 395, and concluded that the intermodal contract before it was maritime: “Conceptually, so long as a bill of lading requires substantial carriage of goods by sea, its purpose is to effectuate maritime commerce — and thus it is a maritime contract.... Geography, then, is useful ... only in a limited sense: If a bill’s sea components are insubstantial, then the bill is not a maritime contract.” Id. Thus, contrary to at least the terms of this Court’s jurisprudence, the Supreme Court exercised admiralty jurisdiction over a contract with non-maritime components deemed to be more than “incidental.” The Norfolk Southern Railway Co. court’s analysis of an intermodal transportation contract suggests a global principle. In applying what we have previously called the “incidental” exception, we should focus “on whether the principal objective of a contract is maritime commerce,” id. at 394, rather than on whether the non-maritime components are properly characterized as more than “incidental” or “merely incidental” to the contract. Our “incidental” exception then might more accurately be termed the primary or principal objective exception. As an insurance contract is maritime to the extent that it is “marine insurance,” see Jeffcott, 129 F.2d at 584, admiralty jurisdiction will exist over an insurance contract where the primary or principal objective of the contract is the establishment of “policies of marine insurance,” Dunham, 78 U.S. (11 Wall.) at 35. The parties disagree as to whether and to what extent the contract established marine insurance. Folksamerica focuses on the risks for which the Policy was procured, insists those risks are maritime, and contends the Policy is fundamentally marine — “marine insurance, issued to marine entities by a marine insurer, via a marine broker, to cover the insureds’ ship repair and cleaning operations,” Appellant’s Br. at 5. Clean Water counters that even if the SLL portion of this policy is marine, the CGL" }, { "docid": "16814702", "title": "", "text": "same under either British or U.S. law, as the underlying claim (breach of the warranty of seaworthiness) is maritime in both nations. Vitol never considered whether the maritime character of the underlying claim under U.S. law standards justifies the exercise of federal admiralty jurisdiction. 756 F.3d at 159, 2014 WL 2609648, at *6. Vitol resolved the isolated issue raised in that case and no more. Freight Bulk’s argument to the contrary is without merit. C. Supreme Court precedent strongly indicates that federal law should control our determination of whether a claim, such as the FFA dispute in this case, sounds in admiralty. Although the Supreme Court has not directly addressed the issue, its opinion in Kirby offers guidance. In Kirby, the Supreme Court considered whether federal or state law governed the interpretation of two maritime contracts. 543 U.S. at 22-23, 125 S.Ct. 385. The Court concluded that “[w]hen a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation.” Id. In reaching this conclusion, the Supreme Court explained that Article Ill’s purpose in granting admiralty jurisdiction to the federal courts was to provide for the uniformity of maritime law throughout the country, including the uniform interpretation of maritime contracts. Id. at 28, 125 S.Ct. 385. It certainly could not have been the intention [of Article III] to place the rule and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states. Id. at 28-29, 125 S.Ct. 385; see also Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 24, 20 L.Ed. 90 (1870) (holding that “the admiralty and maritime jurisdiction of the United States is not limited either by the restraining statutes or the judicial prohibitions of England, but is to be interpreted by a more enlarged view of its essential nature and objects”). As the district court observed, based upon the constitutional principle of" }, { "docid": "16814726", "title": "", "text": "*8. It is hard to fathom the British High Court of Justice caring what jurisdictional subclause of Article III, Section 2 the federal court invokes to enforce the judgment. It should be enough that a plaintiff in possession of a favorable English judgment is given the maximum constitutionally permissible freedom to choose his preferred forum — here, a federal court sitting in admiralty. If anything, such a rule enhances, rather than diminishes, comity. It may also make it easier for U.S. parties to enforce contracts such as the one here in foreign maritime courts. To be sure, foreign law is not irrelevant to the determination of whether federal admiralty jurisdiction exists. The status of the contract or judgment under foreign law informs the inquiry in important ways. The question of whether a legal issue is maritime in nature is not an exercise in logic chopping wholly internal to the conceptual schemas of American jurisprudence; instead, it asks whether, as a practical matter, the “principal objective of [the] contract is maritime commerce.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 25, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). The reasoned judgments of experienced jurists, foreign or domestic, on this issue are due respectful consideration by federal courts. Additionally, whether other countries characterize a contract as maritime might have collateral consequences that may affect its real-world impact on maritime commerce — for example, in terms of how the contract is interpreted overseas or what procedures its interpretations are afforded. Nevertheless, the ultimate question of whether a contract or judgment is maritime for the purpose of supporting federal admiralty jurisdiction must, for the reasons explained above, be answered by reference to domestic rather than foreign law. While foreign law may or may not be instructive under the circumstances, it cannot determine the subject matter jurisdiction of an American court. And, as ably demonstrated in Judge Agee’s majority opinion, the contract here has a “genuinely salty flavor.” Kossick v. United Fruit Co., 365 U.S. 731, 742, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). Thus, federal admiralty jurisdiction properly lies." }, { "docid": "14954547", "title": "", "text": "vacating a writ of maritime attachment for abuse of discretion. Equatorial Marine Fuel Mgmt. Servs. Pte Ltd. v. MISC Berhad, 591 F.3d 1208, 1210 (9th Cir.2010). We review the legal conclusions supporting such an order de novo. Id. We review de novo a district court’s decision that it lacked the legal capacity under the Admiralty Rules to order a party to post security in lieu of garnishment. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.2002) (noting that conclusions of law are re viewed de novo), aff'd, 540 U.S. 644, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004). Ill The district court vacated ProShipLine’s and EP-Team’s writ of maritime attachment because it concluded that there was no valid maritime claim giving rise to admiralty jurisdiction. The district court also held that it was bound by res judicata to vacate the writ. The district court further concluded that attachment was improper because all of the parties were present in the Southern District of Texas. On appeal to this court, Aspen offers a fourth reason that equitable vacatur was proper, arguing that ProShipLine and EP-Team violated 9 U.S.C. § 8 by seeking maritime attachment without diligently pursuing arbitration in Singapore. The district court properly vacated the writ as to ProShipLine. The district court, however, abused its discretion by vacating the writ as it pertains to EP-Team individually- A A party may only seek Rule B attachment if the underlying claim satisfies admiralty jurisdiction under 28 U.S.C. § 1333. The Supreme Court explains that a contractual claim gives rise to Section 1333 admiralty jurisdiction when the underlying contract is “maritime in nature.” Norfolk S. Ry. Co. v. James N. Kirby, 543 U.S. 14, 26, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). To make this determination, we must examine a contract to determine “whether the principal objective of a contract is maritime commerce.” Id. at 25, 125 S.Ct. 385. In adopting this framework, the Supreme Court rejected the longstanding “spatial approach” to determining the maritime nature of contracts. Id. at 24-25, 125 S.Ct. 385. The Court instead held that a “conceptual approach” was" }, { "docid": "2571143", "title": "", "text": "is maritime commerce,” id. at 394, rather than on whether the non-maritime components are properly characterized as more than “incidental” or “merely incidental” to the contract. Our “incidental” exception then might more accurately be termed the primary or principal objective exception. As an insurance contract is maritime to the extent that it is “marine insurance,” see Jeffcott, 129 F.2d at 584, admiralty jurisdiction will exist over an insurance contract where the primary or principal objective of the contract is the establishment of “policies of marine insurance,” Dunham, 78 U.S. (11 Wall.) at 35. The parties disagree as to whether and to what extent the contract established marine insurance. Folksamerica focuses on the risks for which the Policy was procured, insists those risks are maritime, and contends the Policy is fundamentally marine — “marine insurance, issued to marine entities by a marine insurer, via a marine broker, to cover the insureds’ ship repair and cleaning operations,” Appellant’s Br. at 5. Clean Water counters that even if the SLL portion of this policy is marine, the CGL section is not. We conclude that the insurance contract at issue is primarily or principally concerned with maritime objectives, although there were incidental non-maritime elements. Accordingly, the district court erred in concluding that subject matter jurisdiction was lacking. 1. The CGL Section Clean Water makes two chief objections to construing the CGL section of the Policy as marine insurance. The first objection is a matter of form. Clean Water argues that, unlike a traditional marine insurance policy, a CGL policy is a shore side insurance form and that a reasonable person reading it would therefore conclude that it covered nothing but shore side risks. Clean Water’s second objection is based on coverage. It claims, “The function of [ajdmiralty [¡jurisdiction is to ensure uniformity of laws as they apply to the carriage of cargo[e]s and passengers upon navigable waters. The fact [that] this CGL Policy covers none of these risks excludes it from consideration as a policy of marine insurance.” Appellee’s Br. at 13. We reject both arguments. a. Form First, despite Clean Water’s suggestion, a" }, { "docid": "14131061", "title": "", "text": "(9th Cir.1999), cert. denied, 530 U.S. 1203, 120 S.Ct. 2196, 147 L.Ed.2d 232 (2000). III.DISCUSSION We must determine whether a federal court has admiralty jurisdiction over a marine insurance policy that, besides covering damage to a boat while on the water, requires the policyholder to store his boat on land for half the year, insures against theft while on land, and limits navigation of the boat to inland waters of California. “A contract is within admiralty jurisdiction if its subject matter is maritime.” Royal Ins. Co. of America v. Pier 39 Ltd., 738 F.2d 1035, 1036 (9th Cir.1984); Aqua-Marine Constructors, Inc. v. Banks, 110 F.3d 663, 671 (9th Cir.1997) (“It is ... the subject matter (rather than the place of execution or place of performance) of a contract which determines the existence of federal maritime jurisdiction over a contractual claim.”). There is no clear test for whether the subject matter of a contract is maritime. Instead, we look to precedent and reason by analogy. See Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961) (“Precedent and usage are helpful insofar as they exclude or include certain common types of contract: a contract to repair or to insure a ship is maritime, but a contract to build a ship is not.” (citations omitted)); Royal Ins. Co., 738 F.2d at 1036. We have recognized repeatedly that marine insurance policies are maritime contracts for purposes of admiralty jurisdiction. See Simon v. Intercontinental Transp., 882 F.2d 1435, 1441 (9th Cir.1989) (citing New England Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 20 L.Ed. 90 (1870)); Royal Ins. Co., 738 F.2d at 1036; Stanley T. Scott & Co., Inc. v. Makah Dev. Corp., 496 F.2d 525, 526 (9th Cir.1974). Even so the label “marine insurance policy” alone is not enough to guarantee jurisdiction over a contract dispute. “For an insurance policy to be within admiralty jurisdiction, the interests insured, and not simply the risks insured against, must be maritime.” Royal Ins. Co., 738 F.2d at 1036. Thus, a policy covering a beach house against damage from" } ]

[ { "docid": "14311240", "title": "", "text": "that the defendants’ “practices were in place and established prior to the lawsuit ever being filed.” Finally, as to the claim based on Ekanem’s reinstatement under the preliminary injunction, the grant of a preliminary injunction does not make the plaintiff a prevailing party if the preliminary injunction merely preserved the status quo and was not a determination on the merits. Smith v. Univ. of North Carolina, 632 F.2d 316, 350-53 (4th Cir.1980). Although reinstatement was one of the benefits Ekanem sought when he initiated this lawsuit, he cannot be classified as a “prevailing party” since this court reversed the preliminary injunction on the ground, inter alia, that the plaintiff was unable to show a substantial likelihood of success on the merits. Ekanem I, 589 F.2d at 319-21. Indeed, at the trial on the merits, the district court granted the defendants’ motion to dismiss Ekanem’s individual claim under Rule 41(b) for failure to establish a prima facie case of discrimination or retaliation and our court affirmed the dismissal. Ekanem II, 724 F.2d at 569-72. Thus, because the preliminary injunction was reversed and Ekanem’s individual claim failed both at trial and on appeal, he cannot be characterized as a “prevailing party.” We hold that the district court correctly found that the plaintiffs were not prevailing parties and were not entitled to appellate attorneys fees. The decision of the district court denying the plaintiffs’ appellate attorneys fees is Affirmed. . A more complete statement of the background facts appears in our opinion in Ekanem I and will not be repeated here since they are not relevant to the issue of whether the plaintiffs may receive appellate attorneys fees. . The parties briefs and our decision in Ekanem II fail to reveal whether the district court’s award of attorneys fees to the defendants was limited to the preparation and conduct of the matters (preliminary injunction, trial on the merits) before the district court as it included the work on the appeal. . Following the Supreme Court's decisions in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (holding" } ]

[ { "docid": "18720091", "title": "", "text": "court did not make an adjustment for inflation. Accordingly, the court ordered defendants to pay $87,360 in attorney’s fees. On appeal, defendants challenge the finding that plaintiffs were prevailing parties. Alternatively, they argue: (1) that any fees awarded should be reduced because of the limited relief plaintiffs ultimately obtained; (2) that fees should not have been subject to a multiplier; and (3) that time spent pursuing fee petitions should not be recoverable at all and certainly should not be subject to any multiplier. On cross-appeal, plaintiffs challenge the district court’s refusal to adjust fees for inflation and to award fees for work performed on the appeal. DISCUSSION I. Prevailing Party Defendants first argue that the district court erred in finding plaintiffs to be prevailing parties within the meaning of 42 U.S.C. § 1988. We disagree. Plaintiffs need not obtain formal relief in order to enjoy prevailing party status. E.g., Braafladt v. Board of Governors of the Oregon State Bar Ass’n, 778 F.2d 1442, 1443-44 (9th Cir.1985); American Constitutional Party v. Munro, 650 F.2d 184, 187 (9th Cir.1981). It is enough that plaintiffs received some of the benefit they sought in bringing the suit. E.g., Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983). Whether a litigant has shown a sufficient causal relationship between the lawsuit and the practical outcome realized is a pragmatic factual inquiry for the district court. We review the findings for clear error. Braafladt, 778 F.2d at 1444. The district court’s finding that plaintiffs were prevailing parties is not clearly erroneous. Although the damage award was reversed on appeal, the district court found that the harassment plaintiffs had experienced ended with the jury verdict. This result was the primary relief plaintiffs wanted. Plaintiffs qualify as prevailing parties. II. The Fee Award A. Standard of Review A district court's award of attorney’s fees will not be disturbed absent an abuse of discretion. Harris v. McCarthy, 790 F.2d 753, 756 (9th Cir.1986). B. Reduction for Limited Relief Obtained Defendants argue that the district court abused its discretion by not reducing the fee awarded to reflect the limited" }, { "docid": "22968122", "title": "", "text": "injunction is reversed; for unless it is stayed, it constrains the defendants’ conduct until it is reversed. Indeed, from this standpoint it would make no difference whether the pre liminary injunction was vacated as moot (as in Williams) or reversed. This line of argument is foreclosed, however, by our decision in Ekanem v. Health & Hospital Corp., 778 F.2d 1254, 1258 (7th Cir.1985), which holds that a plaintiff who gets a preliminary injunction that is later reversed is not a prevailing party for purposes of an award of attorney’s fees. See also Smith v. University of North Carolina, 632 F.2d 316, 346-53 (4th Cir.1980). In such a case the plaintiff has lost, whereas in a case that becomes moot after the preliminary injunction is entered the plaintiff has not lost; the injunction is vacated not because the plaintiff has failed to sustain his case but “to make sure that a decision of which the losing party was denied appellate review will not have preclusive effect in subsequent litigation between the parties,” CFTC v. Board of Trade, 701 F.2d 653, 656-57 (7th Cir.1983). The plaintiffs say they won in a practical sense because the city has stopped discarding exculpatory material in police department files. But at oral argument the plaintiffs’ counsel conceded that if they had brought a damage suit against the city, and lost, and the next day the city had said, “Well, we won, but we think the plaintiffs have a point, and we have decided to change our procedures,” there could be no award of attorneys’ fees under section 1988. Or suppose (as in fact happened here) that a plaintiff gets an injunction to which he has no legal right but the defendant complies pending appeal, thus conferring a benefit on the plaintiff. As is apparent from Ekanem and Smith, this kind of benefit cannot support a fee award. “If it has been judicially determined that defendants’ conduct, however beneficial it may be to plaintiffs’ interests, is not required by law, then defendants must be held to have acted gratuitously and plaintiffs have not prevailed in a legal" }, { "docid": "18716483", "title": "", "text": "ORDER GRANTING APPELLANT’S REQUEST FOR ATTORNEY’S FEES UNDER 42 U.S.C. § 1988 Paul Jensen filed this action under 42 U.S.C. § 1983 against the City of San Jose (“City”) and two police officers. The district court granted summary judgment for the City, the jury decided in favor of one officer, and the other was dismissed by the court as a defendant. The district court found Jensen’s action to be “vexatious, frivolous and without foundation” and awarded attorney’s fees to Stangel and the City in the sum of $10,934.00. Jensen appealed the attorney’s fee award, and we reversed, holding that Jensen’s claims were not frivolous, unreasonable, or without merit. Jensen v. Stangel, 762 F.2d 815 (9th Cir.1985). Because he successfully challenged the district court’s award of attorney’s fees, Jensen, pursuant to 42 U.S.C. § 1988, now moves for attorney’s fees on this appeal. We note at the outset that section 1988 authorizes an award of attorney's fees to Jensen for his successful appeal. “[We have] construed [section 1988] as implicitly authorizing compensation for time devoted to either the pursuit or the defense of an appeal challenging the district court’s award of attorney’s fees.” In re Nucorp Energy, Inc., 764 F.2d 655, 660 (9th Cir.1985) (citing Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1126 (9th Cir.1981)). 42 U.S.C. § 1988 provides that in actions brought under 42 U.S.C. § 1983 a court may, in its discretion, award reasonable attorney’s fees to a “prevailing party.” A party is a “prevailing” party under this section if he or she succeeds “on any significant issue in litigation which achieves some of the benefit” the party sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983). The extent of the plaintiff’s success is considered only in determining the amount of the award. Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941, Riviera v. City of Riverside, 763 F.2d 1580, 1583 (9th Cir.1985), cert. granted, — U.S. -, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985);" }, { "docid": "18716485", "title": "", "text": "Lummi, 720 F.2d at 1125. Here Jensen achieved all the benefit he sought on his appeal from the district court’s attorney’s fee award. On appeal we held that his section 1983 claim was reasonable and not frivolous, and we reversed the judgment against him for the amount of defendants’ district court attorney’s fees. Because Jensen now has the benefit of a favorable final judgment on the merits of his fee award appeal, he is the prevailing party and is entitled to a reasonable attorney’s fee for his appeal. Congress intended to encourage nonfrivolous suits by victims of discrimination when it enacted section 1988. Parks v. Watson, 716 F.2d 646, 664-65 (9th Cir.1983) (citing S.Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Ad.News 5908 at 5912). Furthermore, “Congress has instructed the courts to use the broadest and most effective remedies available to achieve the goals of our civil rights laws.” S.Rep. No. 1011 at 3, reprinted in 1976 U.S.Code Cong. & Ad. News at 5910. This circuit has interpreted Congress’ mandate to require a liberal construction of section 1988 to achieve the purpose of encouraging compliance with and enforcement of the civil rights laws. American Constitutional Party v. Munro, 650 F.2d 184, 187 (9th Cir.1981). In this appeal, we determined that Jensen’s civil rights suit was reasonable, meri torious and not frivolous and that the defendants were therefore not entitled to an attorney’s fee award by the district court. Failure to award attorney’s fees for Jensen for successfully prosecuting such an appeal would deter plaintiffs from bringing good faith actions to vindicate civil rights and produce a result contrary to the intent of Congress. Having concluded that Jensen is entitled to attorney’s fees, we must determine the amount to which he is entitled. The amount should be “reasonable in relation to the results obtained.” Hensley, 461 U.S. at 440, 103 S.Ct. at 1943. Because Jensen enjoyed complete success on his appeal, the entire effort of his counsel on appeal is reasonably related to the results obtained. In support of his motion for such an appeal," }, { "docid": "17711388", "title": "", "text": "hour times an incentive multiplier of 1.5. The district court awarded plaintiffs’ counsel a “token” award of $5,000. The court recognized that $5,000 was “far less than adequate consideration for the time and efforts reasonably and necessarily required for the proceedings.” Nevertheless, the court determined the $5,000 award to be reasonable in light of several factors, including (1) the outcome of the proceedings, (2) defendants’ good faith efforts to comply with the judgment, (3) the efforts reasonably required for the proceedings, and (4) the fact that plaintiffs’ counsel had received $95,000 in attorney’s fees in the primary action. On appeal plaintiffs contend that the district court abused its discretion in awarding only $5,000 in attorney’s fees. DISCUSSION I. Plaintiffs were the prevailing party in the eontempt/modification proceedings. Under section 1988, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs” in civil rights actions. 42 U.S.C. § 1988 (Supp. IV 1980). In order to be characterized as a “prevailing party,” a party need not obtain formal relief on the merits. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980); S.Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912-13. Rather, the party must establish “some sort of clear, causal relationship between the litigation brought and the practical outcome realized.” American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir.1981) (emphasis in original). In this case, plaintiffs did not secure a modification of the judgment nor were defendants held in contempt. However, the district court’s findings of fact and conclusions of law indicate that the pendency of the proceedings resulted in improvements in the defendants’ efforts to comply with the judgment: 7. Plaintiffs failed to carry their burden of proof with regard to their motion for modification of the judgment, although the pendency of these proceedings resulted in corrective action that rendered modification unnecessary. 8. Although the plaintiffs were not the prevailing party, there were reasonable grounds for the plaintiffs to have initiated" }, { "docid": "14311231", "title": "", "text": "injunction was a clear indication that the plaintiffs’ claims were frivolous, unreasonable and groundless. The plaintiffs appealed both the grant of the Rule 41(b) motion to dismiss and the award of attorneys fees to the defendants. Ekanem v. Health & Hosp. Corp., 724 F.2d 563 (7th Cir.1983) (“Ekanem II ”). In their brief to this court, the defendants petitioned for an award of appellate attorneys fees. Our court determined that the district court erred in rejecting statistical evidence offered by the plain tiff and held that the relevant labor pool in a statistical analysis of the defendants’ “pattern and practice” of discrimination was the work force within the Corporation rather than the outside community, as the district court held. Id. at 572. We affirmed the district court’s dismissal of the class claims, as the class lacked a proper representative. Id. at 572-73. The dismissal of the individual claims for failure to present prima facie cases of discrimination were also affirmed. Id. at 567-72. Moreover, our court reversed the award of attorney’s fees to the defendants, labeling the issue “a close call” and giving “the benefit of the doubt” to the plaintiffs. Id. at 574-75. Without mentioning the issue of appellate attorneys fees, we held: “The parties shall bear their own costs.” Id. at 575. On July 27, 1984, Ekanem filed a petition with the district court seeking, “reasonable attorneys’ fees for legal services rendered on behalf of the plaintiff herein in connection with that portion of the decision of the court of appeals rendered on December 14, 1983, which reversed the district court’s judgment awarding attorneys’ fees to the defendant.” The district court denied the petition for appellate attorneys fees, finding that because the plaintiffs failed to “achieve any relief in the Appellate Court sought by them in bringing this action in the first instance,” they were not “prevailing parties” as that term is used in § 706 of Title VII (42 U.S.C. § 2000e-5(K)). Furthermore, the district court determined that “both parties urged in their appellate briefs that the Court of Appeals award them attorneys’ fees for their work.”" }, { "docid": "18716498", "title": "", "text": "the courts have recognized that when such fees have been awarded in the District Court and then challenged on appeal, the legal cost of defending the original award must be added to the District Court’s award to protect it from being lost or eroded by the cost of defending it on appeal. The same may be said of an appeal brought to overcome a refusal by the trial court to award fees to the prevailing party. To carry out the intent of Congress, a party who has been unjustly denied fees in the trial court who succeeds in establishing entitlement on appeal should be entitled to a reasonable fee for legal services in the trial court and in the appellate court in order to recover a net award which is not lost or diminished by the cost of legal services on appeal. It is clear to me, that Section 1988 authorizes recovery of fees by a qualified party for legal services in the trial court and if appeal is necessary, legal costs of appeal must be added. However, one unqualified prerequisite is to be a prevailing party in the civil rights suit. Jensen lacks this qualification. He initiated the action, but didn’t prevail and Congress did not provide for fees in this situation. In my mind, this is an important case, one of first impression in the Ninth Circuit. Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir.1981) is a Ninth Circuit case cited by the majority as supporting the proposition that fees may be awarded to any party succeeding in the Court of Appeals on the subject of entitlement to fees. Plaintiffs in the cited case had been awarded fees by the trial court, as the prevailing parties. Defendants challenged the District Court’s award on appeal. In context, the language used in the opinion affirming the award, “successfully defending appeals of or challenges to” the award, obviously refers only to the successful defense of the award on appeal. The words “appeals” and “challenges” are used synonymously. Otherwise the meaning attached to those words in the majority opinion" }, { "docid": "3056540", "title": "", "text": "reasonably related to the Commission’s legitimate concern for the safe, efficient, and orderly use of the facilities and for providing continuing recreational services in the future. The Park Commission’s legislative conclusions and the exercise of its discretion were not irrational. The court below properly granted summary judgment in favor of defendants. We affirm on this substantive issue and turn to the question of attorneys fees. ATTORNEYS FEES The appellants argue they are entitled to attorneys fees. They assert that, notwithstanding the grant of summary judgment to defendants, they should be considered prevailing parties because they caused the clubs to admit women members and the Park Commission to institute some measure of nonmember access. The district court refused to award fees, adopting a magistrate’s report recommending that result. We review that decision for abuse of discretion. E.g., Sethy v. Alameda County Water District, 602 F.2d 894 (9th Cir. 1979) (per curiam), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980). Only prevailing parties may recover attorneys fees, 42 U.S.C. § 1988, but a party may prevail without obtaining formal relief. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653.(1980). Because appellants did not receive a favorable judgment below, any entitlement to fees must rest on their role as catalyst for defendants’ voluntary compliance with the relief sought in their complaint. See, e.g., Bartholomew v. Watson, 665 F.2d 910, 914 (9th Cir. 1982); Sullivan v. Pennsylvania Dep’t of Labor & Industry, 663 F.2d 443, 447-51 (3d Cir. 1981), cert. denied,-U.S. -, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982); Robinson v. Kimbrough, 652 F.2d 458, 466 (5th Cir. 1981). To be considered catalysts for voluntary action by defendants, appellants must “establish some sort of clear, causal relationship between the litigation brought and the practical outcome realized.” American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir. 1981) (emphasis in original). We must decide whether they have shown a sufficient causal connection. The magistrate concluded that the Besig plaintiffs were not prevailing parties because they could claim no responsibility for any action taken in response" }, { "docid": "23118946", "title": "", "text": "this award. We review the district court’s award of fees pursuant to 42 U.S.C. § 1988 for abuse of discretion. See Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.1997). We also review an award of costs for abuse of discretion. See EEOC v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir.1997). B. Discussion A party “prevails” for the purposes of a fee award if it succeeds “on any significant issue in litigation which achieves some of the benefit [it] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). “[T]o be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dish, 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). “[Plaintiffs seeking to qualify as ‘prevailing parties’ [must] establish some sort of clear, causal relationship between the litigation brought and the practical outcome realized.” American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir.1981). The Officials contend that obtaining a TRO alone does not qualify one for “prevailing party” status. As authority for this assertion, they cite to decisions from three other circuits. The officials misread these cases. In Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223 (7th Cir.1995), the court held that obtaining a TRO alone does not constitute prevailing on the merits where the TRO did no more than preserve the status quo. See id. at 230-31. The other cases cited by the Officials also invoked a test based on whether the status quo had been changed. See Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979) (holding that party obtaining TRO was not a “prevailing party” because the particular TRO in question only preserved the status quo); Paragould Music Co. v. City Paragould, 738 F.2d 973, 974 (8th Cir.1984) (same). It is clear that the TRO in this case did more than preserve the status quo. Here, the district" }, { "docid": "18716484", "title": "", "text": "either the pursuit or the defense of an appeal challenging the district court’s award of attorney’s fees.” In re Nucorp Energy, Inc., 764 F.2d 655, 660 (9th Cir.1985) (citing Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1126 (9th Cir.1981)). 42 U.S.C. § 1988 provides that in actions brought under 42 U.S.C. § 1983 a court may, in its discretion, award reasonable attorney’s fees to a “prevailing party.” A party is a “prevailing” party under this section if he or she succeeds “on any significant issue in litigation which achieves some of the benefit” the party sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983). The extent of the plaintiff’s success is considered only in determining the amount of the award. Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941, Riviera v. City of Riverside, 763 F.2d 1580, 1583 (9th Cir.1985), cert. granted, — U.S. -, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985); Lummi, 720 F.2d at 1125. Here Jensen achieved all the benefit he sought on his appeal from the district court’s attorney’s fee award. On appeal we held that his section 1983 claim was reasonable and not frivolous, and we reversed the judgment against him for the amount of defendants’ district court attorney’s fees. Because Jensen now has the benefit of a favorable final judgment on the merits of his fee award appeal, he is the prevailing party and is entitled to a reasonable attorney’s fee for his appeal. Congress intended to encourage nonfrivolous suits by victims of discrimination when it enacted section 1988. Parks v. Watson, 716 F.2d 646, 664-65 (9th Cir.1983) (citing S.Rep. No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Ad.News 5908 at 5912). Furthermore, “Congress has instructed the courts to use the broadest and most effective remedies available to achieve the goals of our civil rights laws.” S.Rep. No. 1011 at 3, reprinted in 1976 U.S.Code Cong. & Ad. News at 5910. This circuit has interpreted Congress’" }, { "docid": "5470878", "title": "", "text": "since the district court made its ruling. We find that these recent cases require a remand. The district court denied attorney fees for two reasons. First, the court stated that it was “unable to determine which of the parties would have prevailed had this matter gone to trial.” This consideration is inappropriate. In order to be a “prevailing party,” a plaintiff need only establish “some sort of clear, causal relationship between the litigation brought and the practical outcome realized.” Id. at 1419 (quoting American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir.1981)). There is no requirement that the party obtain formal relief on the merits. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980). Second, the district court denied fees because both parties received benefits and made concessions in the settlement. This analysis is inconsistent with Hensley v. Eckerhart, — U.S. —, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In Hensley, the Supreme Court held that “ ‘plaintiffs may be considered “prevailing parties” for attor-. ney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit which the parties sought in bringing suit.’ ” — U.S. at —, 103 S.Ct. at 1939, 76 L.Ed.2d at 50 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)) (emphasis added). Hensley approves a generous standard for determining when a plaintiff is a “prevailing party.” The extent of the plaintiff’s success is considered only in determining the amount of the award. — U.S. at —, 103 S.Ct. at 1942, 76 L.Ed.2d at 54. The plaintiffs sought to enjoin the defendants from interfering with their access to their fishing sites. The settlement assured them access to these sites. Accordingly, the plaintiffs received some of the benefit that they sought in bringing suit. See Hensley, — U.S. at —, 103 S.Ct. at 1939, 76 L.Ed.2d at 50; Bartholomew v. Watson, 665 F.2d 910, 914 (9th Cir.1982). “Plaintiffs prevailing in a civil rights action ‘should ordinarily receive attorney’s fees unless special circumstances would render such an award unjust. ” Mayer v." }, { "docid": "5470877", "title": "", "text": "EUGENE A. WRIGHT, Circuit Judge: The Lummi Indian Tribe filed this action under 42 U.S.C. § 1985, alleging that the defendants had blocked tribal access to fishing grounds. The defendants counterclaimed under 42 U.S.C. §§ 1981, 1982, and 1985. After a settlement, both sides sought attorney fees under 42 U.S.C. § 1988, which the district court disallowed on the basis that neither party had prevailed. The order denying fees reasoned that each party had received benefits and made concessions, and that the main benefit the plaintiffs received was narrowly circumscribed and burdened with assurances to the defendants. Whether a party is a “prevailing party” for the purposes of § 1988 is a finding of fact that will not be disturbed on appeal unless clearly erroneous. White v. City of Richmond, 713 F.2d 458, 460 (9th Cir.1983). We must reverse, however, if the district court used incorrect legal standards to reach this finding. See Rutherford v. Pitchess, 713 F.2d 1416, 1421-22 (9th Cir.1983). The Supreme Court and this circuit have clarified the meaning of § 1988 since the district court made its ruling. We find that these recent cases require a remand. The district court denied attorney fees for two reasons. First, the court stated that it was “unable to determine which of the parties would have prevailed had this matter gone to trial.” This consideration is inappropriate. In order to be a “prevailing party,” a plaintiff need only establish “some sort of clear, causal relationship between the litigation brought and the practical outcome realized.” Id. at 1419 (quoting American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir.1981)). There is no requirement that the party obtain formal relief on the merits. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980). Second, the district court denied fees because both parties received benefits and made concessions in the settlement. This analysis is inconsistent with Hensley v. Eckerhart, — U.S. —, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In Hensley, the Supreme Court held that “ ‘plaintiffs may be considered “prevailing parties” for attor-. ney’s fees" }, { "docid": "18716502", "title": "", "text": "his own attorney. ****** As is true of other procedural or evidentiary rulings, these determinations may affect the disposition on the merits, but were themselves not matters on which a party could \"prevail” for purposes of shifting his counsel fees to the opposing party under Section 1988. See also Ekanem v. Health and Hospital Corporation of Marion County, Indiana, 778 F.2d 1254, 1258 (7th Cir.1985), wherein the court stated: Initially we note that the definition of the relevant labor pool and the determination that the defendants were not entitled to attorneys fees were not \"the benefit the parties sought in bringing suit\" and a reversal of the district court’s decisions on these matters, therefore, does not make the plaintiffs \"prevailing parties.” . The majority cites two Ninth Circuit opinions for the proposition that the Court of Appeals can award attorneys fees for an appeal challenging or defending a challenge to the propriety of the district court’s attorneys fee award. In Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir.1981), is the following: ... attorneys fees may be awarded for time devoted in successfully defending appeals of or challenges to the district court’s award of attorneys fees. 657 F.2d at 1126. In context, it is clear that the words \"appeals of and \"challenges to” are used synonymously. The court held that fees were appropriate when a prevailing plaintiff was required to defend a challenge to an award of fees. Unlike Jensen v. Stangel, the award of fees on appeal was made to a plaintiff successfully defending the trial court’s fee award on appeal. Hutto v. Finney, 437 U.S. 676 [98 S.Ct. at 2564] (1978) was cited in support of an award of attorneys fees on appeal. This case is not authority for allowing fees to a plaintiff who did not prevail at trial. In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir.1985) is a bankruptcy case. Counsel petitioned for fees, including compensation for the time spent in preparing the application for fees. The court looked to the practice in statutory fees cases (such as Section 1988 awards) to" }, { "docid": "23692625", "title": "", "text": "in accord with their relative culpability, claiming that each defendant’s relative culpability is reflected in the proportion of the overall jury verdict that is directed against him. Three recent Ninth Circuit cases have dealt with the issue of apportionment. In Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1125-26 (9th Cir.1981), plaintiffs sued both state and federal defendants to enjoin construction of a freeway built by the state but funded by the federal government. Plaintiffs prevailed on one of their twelve claims. Thus, attorney’s fees were available to plaintiffs under section 1988. See Jensen v. City of San Jose, 806 F.2d 899, 900 (9th Cir.1986) (en banc). However, the federal defendants were exempted from liability for their share of attorney’s fees by 28 U.S.C. § 2412. Adams, 657 F.2d at 1125. The district court apportioned 75% of the attorney’s fees to the state defendants, who were the primary focus of the plaintiffs’ action. We faced the question whether the district court abused its discretion when it executed this lopsided apportionment. We held that, since “probably at least 75% of plaintiffs’ counsel’s preparation dealt with the state defendants, as opposed to the federal defendants,” the district court had not abused its discretion. Adams, 657 F.2d at 1125-26. We again considered apportionment of attorney’s fee liability among defendants in Sable Communications of California v. Pacific Telephone & Telegraph Co., 890 F.2d 184, 194 (9th Cir.1989). Sable, a “phone sex” company, brought suit against Pacific Bell under section 1983. Sable sought to enjoin Pacific Bell from interfering with Sable’s operations. General Telephone intervened in the suit as an additional defendant. Sable won both its injunction and $150,000 in attorney’s fees, fees for which General Telephone and Pacific Bell were to be jointly and severally liable. On appeal, we held that the district court had abused its discretion when it failed to apportion the attorney’s fee award between Pacific Bell and General Telephone. We said: “If, as appears likely, the conduct of Pacific Bell was the focus of the litigation and required a larger portion of the time of plaintiff’s counsel, it is" }, { "docid": "22968123", "title": "", "text": "Trade, 701 F.2d 653, 656-57 (7th Cir.1983). The plaintiffs say they won in a practical sense because the city has stopped discarding exculpatory material in police department files. But at oral argument the plaintiffs’ counsel conceded that if they had brought a damage suit against the city, and lost, and the next day the city had said, “Well, we won, but we think the plaintiffs have a point, and we have decided to change our procedures,” there could be no award of attorneys’ fees under section 1988. Or suppose (as in fact happened here) that a plaintiff gets an injunction to which he has no legal right but the defendant complies pending appeal, thus conferring a benefit on the plaintiff. As is apparent from Ekanem and Smith, this kind of benefit cannot support a fee award. “If it has been judicially determined that defendants’ conduct, however beneficial it may be to plaintiffs’ interests, is not required by law, then defendants must be held to have acted gratuitously and plaintiffs have not prevailed in a legal sense.” Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir.1978). This principle is dramatically illustrated by Doe v. Busbee, 684 F.2d 1375, 1381-83 (11th Cir.1982), where the Eleventh Circuit denied any award of attorney’s fees to plaintiffs who had obtained injunctions that, though later reversed, had while in effect enabled 1,800 women in the plaintiff class to obtain Medicaid-reimbursed abortions. Mantolete v. Bolger, 791 F.2d 784 (9th Cir.1986), though questionable under Han-rahan, is in any event distinguishable from this case, since the plaintiff had prevailed on several substantive issues on appeal, although her right to ultimate relief had not yet been determined. The only relief the plaintiffs in the present case obtained that survived the appellate process was a procedural ruling which turned out to have no substantive value at all. Jensen v. Stangel, 790 F.2d 721, vacated and reh’g en banc granted, 795 F.2d 888 (9th Cir.1986), another recent Ninth Circuit decision, held over a strong dissent that an unsuccessful civil rights plaintiff who manages to fend off an award of attorney’s fees to" }, { "docid": "21921429", "title": "", "text": "v. Fontani, 646 F.2d 1193 (7th Cir. 1981), to the $10,000 in time spent to get that $1. The defendant on the other hand points out that the plaintiff originally asked for $41,000 and suggests that any lesser award would show that the plaintiff had not prevailed. Though there is some case support for this way of posing the question of fees for proving fees, see Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1126 (9th Cir. 1981), this circuit interprets “the prevailing party” referred to in section 1988 as the party who prevails on the merits of the underlying litigation. See Bond v. Stanton, 630 F.2d 1231, 1235 (7th Cir. 1980); cf. Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). That is Muscare. He was declared the prevailing party when this court held that he was entitled to an award of attorneys’ fees, albeit a smaller one than he had sought; and part of the attorneys’ fee to which a prevailing party is, in the discretion of the court, entitled is for time spent in proving his attorneys’ fees. This approach avoids semantic quibbles over how much of his original fee request the plaintiff has to obtain to be deemed a prevailing party in the fee contest and directs the district court’s attention where we think it should be directed, to the question of the reasonableness of a second award in light of all the circumstances of the case. For rather obvious practical reasons we are loath to disturb a ruling by a district judge on a request for second-round attorneys’ fees. The consequence if we should reverse and remand for an award of additional fees is all too predictable: however little the plaintiff is awarded on remand he will move the district court to award him attorneys’ fees for the time spent in prosecuting this appeal, and if the district court denies his motion he will be back up here. Every civil rights litigation will be like a nest of Chinese boxes. The outside box is the litigation of the civil rights" }, { "docid": "18716499", "title": "", "text": "be added. However, one unqualified prerequisite is to be a prevailing party in the civil rights suit. Jensen lacks this qualification. He initiated the action, but didn’t prevail and Congress did not provide for fees in this situation. In my mind, this is an important case, one of first impression in the Ninth Circuit. Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir.1981) is a Ninth Circuit case cited by the majority as supporting the proposition that fees may be awarded to any party succeeding in the Court of Appeals on the subject of entitlement to fees. Plaintiffs in the cited case had been awarded fees by the trial court, as the prevailing parties. Defendants challenged the District Court’s award on appeal. In context, the language used in the opinion affirming the award, “successfully defending appeals of or challenges to” the award, obviously refers only to the successful defense of the award on appeal. The words “appeals” and “challenges” are used synonymously. Otherwise the meaning attached to those words in the majority opinion would be dicta, in light of the facts of that case. Dicta of this character should be ignored. I therefore believe this to be a case of first impression in this circuit. This case does not support treating Jensen, who prevailed on appeal only, as a prevailing party within the meaning of Section 1988. As a case of first impression in this Circuit, this is an important case because the issue of entitlement to attorneys fees is a growing source of litigation. Congress intended to encourage non-frivolous civil rights suits and authorization to assess attorneys fees as part of the costs has been a considerable inducement. As a measure of balance, Congress added that only a prevailing party would qualify. The rule has been generally adopted that to qualify, a plaintiff must prevail upon an issue he raised when he brought suit rather than on collateral issues which develop in the course of litigation. The majority opinion defeats the Congressional plan by eroding this principle, making it irrelevant as to whether the plaintiff wins or" }, { "docid": "21921428", "title": "", "text": "to attorneys’ fees only for the time spent on that claim. 614 F.2d 577 (1980). On remand, the district court cut down the attorneys’ fee award to $8,000. This order was not appealed. So ended the first round of the attorneys’ fee litigation. The plaintiff then moved the district court to award him $10,000 in attorneys’ fees for time spent in litigating his original claim for attorneys’ fees. The district court refused to award any more fees, and this appeal followed. Both the plaintiff and the defendant pose the issue as whether the plaintiff was “the prevailing party” in the litigation over the original claim for attorneys’ fees. The plaintiff claims that he was the prevailing party because, in the end, he was awarded $8,000. He goes further: in answer to a question from the bench at oral argument he stated that even if he had in the end been awarded an attorney’s fee of $1, he would be the prevailing party in the fees litigation and would therefore be entitled, by analogy to Skoda v. Fontani, 646 F.2d 1193 (7th Cir. 1981), to the $10,000 in time spent to get that $1. The defendant on the other hand points out that the plaintiff originally asked for $41,000 and suggests that any lesser award would show that the plaintiff had not prevailed. Though there is some case support for this way of posing the question of fees for proving fees, see Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1126 (9th Cir. 1981), this circuit interprets “the prevailing party” referred to in section 1988 as the party who prevails on the merits of the underlying litigation. See Bond v. Stanton, 630 F.2d 1231, 1235 (7th Cir. 1980); cf. Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). That is Muscare. He was declared the prevailing party when this court held that he was entitled to an award of attorneys’ fees, albeit a smaller one than he had sought; and part of the attorneys’ fee to which a prevailing party is, in the discretion of the" }, { "docid": "18716503", "title": "", "text": "attorneys fees may be awarded for time devoted in successfully defending appeals of or challenges to the district court’s award of attorneys fees. 657 F.2d at 1126. In context, it is clear that the words \"appeals of and \"challenges to” are used synonymously. The court held that fees were appropriate when a prevailing plaintiff was required to defend a challenge to an award of fees. Unlike Jensen v. Stangel, the award of fees on appeal was made to a plaintiff successfully defending the trial court’s fee award on appeal. Hutto v. Finney, 437 U.S. 676 [98 S.Ct. at 2564] (1978) was cited in support of an award of attorneys fees on appeal. This case is not authority for allowing fees to a plaintiff who did not prevail at trial. In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir.1985) is a bankruptcy case. Counsel petitioned for fees, including compensation for the time spent in preparing the application for fees. The court looked to the practice in statutory fees cases (such as Section 1988 awards) to support its holding that time spent in establishing entitlement to and the amount of fees is compensable. Entitlement to Section 1988 awards was not involved. I have not found any case in any circuit that holds that fees can be awarded at the appellate level when a litigant overturns an award of fees to a party which prevailed in the district court. . See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 66, 100 S.Ct. 2024, 2032, 64 L.Ed.2d 723] (1980) (a claimed entitlement to attorney’s fees is sufficiently independent of the merits action under Title VII to support a federal suit “solely to obtain an award of attorney’s fees for legal work done in state and local proceedings.”) . In Christianburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421-22, 98 S.Ct. 694, 700-01, 54 L.Ed.2d 648 (1977), the Supreme Court made the following observations in referring to the Second and Third Circuits: To the extent that abstract words can deal with concrete cases, we think that the concept embodied in the language" }, { "docid": "18716501", "title": "", "text": "loses in the trial court. . 42 U.S.C. Section 1988 states, in pertinent part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 or 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. . See White v. New Hampshire Dept. of Employment Security, supra.; see also Hanrahan v. Hampton, 446 U.S. 754, 758-59, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1979), wherein it was stated: ... Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the \"substantial rights of the parties\" which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney. ****** As is true of other procedural or evidentiary rulings, these determinations may affect the disposition on the merits, but were themselves not matters on which a party could \"prevail” for purposes of shifting his counsel fees to the opposing party under Section 1988. See also Ekanem v. Health and Hospital Corporation of Marion County, Indiana, 778 F.2d 1254, 1258 (7th Cir.1985), wherein the court stated: Initially we note that the definition of the relevant labor pool and the determination that the defendants were not entitled to attorneys fees were not \"the benefit the parties sought in bringing suit\" and a reversal of the district court’s decisions on these matters, therefore, does not make the plaintiffs \"prevailing parties.” . The majority cites two Ninth Circuit opinions for the proposition that the Court of Appeals can award attorneys fees for an appeal challenging or defending a challenge to the propriety of the district court’s attorneys fee award. In Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir.1981), is the following: ..." } ]

[ { "docid": "22656634", "title": "", "text": "basic question of guilt or innocence. The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E. g., Mullaney v. Wilbur, 421 U. S., at 697-698 (requirement of proof beyond a reasonable doubt is not “limit [ed] to those facts which, if not proved, would wholly exonerate” the accused). Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar. We hold that in a challenge to a state criminal conviction brought under 28 U. S. C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied-— the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. IV Turning finally to the specific facts of this case, we reject the petitioner’s claim that under the constitutional standard dictated by Winship his conviction of first-degree murder cannot stand. A review of the record in the light most favorable to the prosecution convinces us that a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law. There was no question at the trial that the petitioner had fatally shot Mary Cole. The crucial factual dispute went to the sufficiency of. the evidence to support a finding that he had specifically intended to kill her. This question, as the Court of Appeals recognized, must be gauged in the light of applicable Virginia law defining the element of premeditation. Under that law it is well settled that premeditation need not exist for any particular length of time, and that an intent to kill may be formed at the moment of the commission of the unlawful act. Commonwealth v. Brown, 90 Va. 671, 19 S. E. 447. From the circumstantial evidence in the record, it is clear that the trial judge could reasonably have found beyond a reasonable doubt that the petitioner" } ]

[ { "docid": "1831032", "title": "", "text": "one crime was evidence of the entire criminal transaction. Id. Therefore, we doubt a severance would have benefit-ted Willard anyway. The district court properly denied habeas corpus relief on this ground. B. Sufficiency of the Evidence Willard contends there was insufficient evidence to convict him of Counts II (burglary), IV (burglary), and VIII (arson). A federal court may grant habeas corpus relief on an insufficient evidence claim only if, after viewing the evidence in the light most favorable to the prosecution, the court finds that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The federal habeas court must assume that the jury resolved all evidentiary conflicts and found all reasonable inferences in the state’s favor. See id. at 326, 99 S.Ct. at 2792; United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985). The record reveals that sufficient evidence exists to convince a rational trier of fact that Willard was guilty of the two burglaries and arson. Willard is not entitled to habeas corpus relief on the ground of insufficient evidence. C. Co-defendant’s Aquittal at Separate Trial on the Same Charges that Willard was Convicted Of Finally, Willard contends his convictions for murder and armed robbery cannot stand because he was convicted as an accessory and the alleged principal, Manuel Robinson, was acquitted of those charges in a separate trial. Willard has couched his argument solely in state law terms and has not asserted any federal constitutional deficiency. A federal court may only grant habeas corpus relief to state prisoners “in custody in violation of the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 2254(a) (1982). The district court properly denied Willard federal habeas corpus relief on this ground. For the reasons expressed above, the district court's denial of Willard’s petition for habeas corpus is Affirmed. . 28 U.S.C. § 2254(d) requires that a federal habeas court presume that" }, { "docid": "13531370", "title": "", "text": "jury trial in the Superior Court of Fulton County, Georgia. The Georgia Court of Appeals affirmed the conviction without opinion. Duncan v. State, 155 Ga.App. 146, 270 S.E.2d 406, cert. denied, 155 Ga.App. 949 (1980). In his habeas corpus petition, Duncan first alleges that the fingerprints found on the vodka bottle in Austin’s home do not provide sufficient evidence to support his burglary conviction. In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court announced the standard to be applied by federal courts in habeas corpus proceedings challenging the sufficiency of the evidence supporting a state court conviction. If procedural prerequisites for habeas corpus relief are otherwise satisfied, “the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 324, 99 S.Ct. at 2791. We must view the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2792; Holloway v. McElroy, 632 F.2d 605, 640 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). Under Georgia law, fingerprint evidence can warrant a conviction if fingerprints corresponding to those of the accused have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time the crime was committed. Glover v. State, 149 Ga.App. 369, 254 S.E.2d 492, 493, cert. denied, 149 Ga.App. 898 (1979); Anthony v. State, 85 Ga.App. 119, 68 S.E.2d 150, 152 (1951). We discern no constitutional problems with this rule. Thus we hold that fingerprint evidence alone, under proper circumstances, can be sufficient to sustain a conviction for an offense like burglary against constitutional attack on the sufficiency of evidence principles set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See United States v. Lamartina, 584 F.2d 764 (6th Cir.1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1263, 59 L.Ed.2d" }, { "docid": "23451442", "title": "", "text": "focus on the inference as relieving the state of its burden of proof that the Ulster analysis was developed fully enough to be termed a second issue. Thus, even if the Ulster issue could be a separate “claim” or “ground” under Rose v. Lundy, it was not properly raised by petitioner at the district court level and thus presents no ground for dismissing the case. III. Sufficiency of the evidence Turning to the merits, Cosby contends that his conviction was not supported by sufficient evidence. The state relies primarily on the inference to be drawn from recent, unexplained possession of goods taken during a burglary that the one in possession committed the burglary. Cosby responds that he presented an unimpeached and reasonable explanation of possession inconsistent with burglary and therefore the inference cannot be drawn unless the state were to rebut his explanation. The state replies that Cosby’s explanation is an issue of fact that the jury is entitled to disbelieve, as it obviously did. The standard for weighing the constitutional sufficiency of the evidence is set forth in Jackson v. Virginia : [T]he applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 324, 99 S.Ct. at 2791. We are to “view the evidence in the light most favorable to the prosecution,” and “all of the evidence is to be considered.” Id. at 319, 99, S.Ct. at 2789. The Supreme Court has further explained that the Jackson standard is a “more stringent test” than a “more likely than not” standard. Ulster, supra, 442 U.S. at 166, 99 S.Ct. at 2229. How much more stringent is uncertain, but it is at least clear that if the reviewing court is convinced by the evidence only that the defendant is more likely than not guilty then the evidence is not sufficient for conviction. The inference of burglary from recent possession of stolen goods on which the state relies is of ancient vintage and has" }, { "docid": "13531369", "title": "", "text": "PER CURIAM: Harry Duncan, Jr. appeals the district court’s denial of his habeas corpus petition, claiming that his burglary conviction is not supported by sufficient evidence and that the prosecutor made improper comments during closing argument. We affirm. Duncan and a friend, Willie Zachery, visited John Austin at his Atlanta home one Saturday and asked to borrow some money. Austin had no money to lend, but he served breakfast to the two visitors in the dining room. Two days later, Austin’s home was ransacked and burglarized. Two television sets, a tape player, some clothing, jewelry, a shotgun, and some other items were taken. Fingerprints were taken from three items left in the house, including a vodka bottle which Austin claimed had been moved from its normal location in the den. Two fingerprints matching Duncan’s were found on the bottle. The items stolen from Austin’s home were never recovered, and there was no other physical evidence to place Duncan at the scene of the burglary the day it occurred. Duncan was convicted of burglary in a jury trial in the Superior Court of Fulton County, Georgia. The Georgia Court of Appeals affirmed the conviction without opinion. Duncan v. State, 155 Ga.App. 146, 270 S.E.2d 406, cert. denied, 155 Ga.App. 949 (1980). In his habeas corpus petition, Duncan first alleges that the fingerprints found on the vodka bottle in Austin’s home do not provide sufficient evidence to support his burglary conviction. In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court announced the standard to be applied by federal courts in habeas corpus proceedings challenging the sufficiency of the evidence supporting a state court conviction. If procedural prerequisites for habeas corpus relief are otherwise satisfied, “the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 324, 99 S.Ct. at 2791. We must view the evidence in the light most favorable to the prosecution. Jackson, 443" }, { "docid": "23351129", "title": "", "text": "announced. The State urges that we should instead apply the standard that was used prior to Jackson. Under that standard, sometimes called the Thompson “no evidence” standard, federal habeas corpus relief was not available on sufficiency of the evidence grounds except in those cases in which there was a total absence of evidence to support a conviction. See, e. g., Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Eleuterio v. Wainwright, 587 F.2d 194, 196 (5th Cir.) (per curiam), cert. denied, 443 U.S. 915, 443 U.S. 915, 61 L.Ed.2d 879 (1979); Anderson v. Maggio, 555 F.2d 447, 452-53 (5th Cir. 1977). The Jackson Court concluded that the “no evidence” rule was insufficient to protect the constitutional guarantees recognized in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). It therefore announced a new standard of review to be applied by federal courts in evaluating the sufficiency of the evidence supporting those state-court convictions challenged under the habeas statute, 28 U.S.C. § 2254 (1976): We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have been otherwise satisfied-the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 324, 99 S.Ct. at 2792. In footnote, the Court directed that this standard be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Id. at 324 n. 16, 99 S.Ct. at 2792 n. 16. Several previous opinions of this court have raised the question of whether Jackson should be applied in reviewing convictions obtained before the date on which Jackson was announced. In those cases, however, we have found the evidence sufficient to support the conviction even if the stricter Jackson standard of review was applied; thus, we have reserved the question for a case in which the application" }, { "docid": "17370497", "title": "", "text": "to violate due process and invalidate the state court judgment. Henderson v. Kibbe, 431 U.S. 145, 146, 97 S.Ct. 1730, 1732, 52 L.Ed.2d 203. Finally, because the evidence of petitioner’s guilt was overwhelming, any error in giving Instruction No. 5 should be treated as harmless. Holloway v. McElroy, 632 F.2d 605, 618 (5th Cir. 1980); United States v. Bohlmann, 625 F.2d 751, 753 (6th Cir. 1980). IV Petitioner’s final claim is that there is insufficient evidence to prove beyond a reasonable doubt that he was legally sane and capable of the requisite intent for first degree murder at the time of the homicide, and that his conviction therefore violates the Due Process Clause of the Fourteenth Amendment. Petitioner is not entitled to habeas corpus relief upon this theory unless “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560. As Jackson teaches, we must in deciding this issue view the evidence in the state court record in the light most favorable to the prosecution. 443 U.S. at 324, 99 S.Ct. at 2792. We conclude that the record so viewed demonstrates that rational triers of fact could have found petitioner sane beyond a reasonable doubt at the time of the offense. Since the petitioner denied his guilt by reason of insanity, the State had the burden of proving defendant’s sanity at the time of the fatal shooting of his wife. Riggs v. State, 264 Ind. 263, 342 N.E.2d 838 (1976). Indiana law on the issue of sanity is controlling. Moore v. Duckworth, 581 F.2d 639, 641 (7th Cir. 1978), affirmed, 443 U.S. 713; Brooks v. Rose, 520 F.2d 775 (6th Cir. 1975). Indiana jurors are permitted to credit the testimony of lay witnesses as well as expert witnesses as to a defendant’s insanity. Murphy v. State, 265 Ind. 116, 352 N.E.2d 479 (1976); Riggs v. State, supra; Sotelo v. State, 264 Ind. 298, 342 N.E.2d 844 (1976). The testimony of eleven lay wit nesses for the State indicated that petitioner was sane" }, { "docid": "2801595", "title": "", "text": "were unidentifiable. Three of fifteen prints found on the six-foot post, and one of two prints from the “turnstile” post belonged to Mikes. Other unidentifiable prints were also found on these posts. None of the prints taken from the fix-it shop area, where the police discovered a number of empty jewelry boxes strewn about, or from the jewelry boxes themselves, or from the stair rail leading to the basement, was identified as Mikes’. In fact, none of the fingerprints found anywhere on the premises except on the posts was identified as Mikes’. II. Standard of Review We review de novo a district court’s decision to deny a petition for writ of habeas corpus. Barker v. Estelle, 913 F.2d 1433, 1437 (9th Cir.1990). However, in reviewing the question whether the evidence was sufficient to sustain Mikes’ conviction, we, like the district court, must view that evidence in the light most favorable to the government and determine whether on that basis any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Newton v. Superior Court of California, 803 F.2d 1051, 1058-59 (9th Cir.1986), cert. denied, 481 U.S. 1070, 107 S.Ct. 2464, 95 L.Ed.2d 873 (1987). A conviction that fails to meet the Jackson standard violates due process and entitles the convicted defendant to habeas relief. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (“We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 ... the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt.”) (footnote omitted); Newton, 803 F.2d at 1058. III. Analysis The critical question presented by this case is whether the evidence of Mikes’ fingerprints on three posts, one of which was identified as the murder weapon, is sufficient by itself to allow a rational trier of fact to convict him of murder. The prosecution’s case rested exclusively" }, { "docid": "266235", "title": "", "text": "in Sykes we are precluded from granting habeas relief. Application of Jackson v. Virginia Tyler next contends that there is insufficient evidence to sustain his conviction for first degree murder under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Although Tyler’s trial was in 1975, this court has held that Jackson is to be applied retroactively. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980). Jackson held that the “no evidence” rule of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), is inadequate to protect a defendant from misapplications of the reasonable doubt standard constitutionally necessary for a criminal conviction, 443 U.S. at 320, 99 S.Ct. at 2790. In order to adequately protect a defendant from such a misapplication, a federal habeas court which is presented with a sufficiency of the evidence claim, must, assuming procedural prerequisites have been satisfied, grant the relief sought if on the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 324, 99 S.Ct. at 2792. Applying this test to the facts of this case, we cannot say Tyler is entitled to relief. Gary Tyler fired a .45 caliber pistol into a crowd of people. A rational fact finder could conclude that firing a pistol into a crowd of people evidences an intent to kill or do great bodily harm to more than one of those assembled. Because Tyler’s Jackson claim goes only to the question of his intent and since a rational trier of fact could conclude he possessed that intent, Tyler cannot succeed on his Jackson claim. The judgment is AFFIRMED. . The Louisiana statute imposing a mandatory death penalty for persons found guilty of first degree murder was declared unconstitutional in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Roberts was decided after Tyler’s trial, but before the Louisiana Supreme Court reviewed his conviction. Because of Roberts, Tyler’s death sentence was vacated and life imprisonment without eligibility for parole, probation or suspension of" }, { "docid": "13787432", "title": "", "text": "with which he is charged.’ ” Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)). However, “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt ...” Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, “in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92. Petitioner Ehinger bears a “very heavy burden”: [T]he standard for appellate review of an insufficiency claim placed a “very heavy burden” on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor. United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983). Accord, e.g., United States v. Strauss, 999 F.2d 692, 696 (2d Cir.1993) (burden on defendant is “ Very heavy'” and all inferences must be drawn in the government’s favor). “[TJhis inquiry does not require a court to ‘ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to" }, { "docid": "7874634", "title": "", "text": "spent time together in prison. Scott denied any knowledge of or involvement in Bell’s murder. II. The constitutional standard for reviewing the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Justice Stewart held that the “relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789. The standard is not whether the evidence is sufficient to convince the habeas court of the petitioner’s guilt beyond a reasonable doubt. Nor does that standard require the prosecution to rule out every hypothesis except that of guilt beyond a reasonable doubt. Id. at 326, 99 S.Ct. at 2793. The Jackson standard is to be applied “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. at 324 n. 16, 99 S.Ct. at 2792 n. 16. This also includes reference to state evidentiary law. Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979). Thus we have held in Goldman v. Anderson, 625 F.2d 135 (6th Cir. 1980), that it is proper for the federal habeas court to take cognizance of state evidentiary law in determining whether an element of the particular criminal offense has been proved. III. Speigner’s successful challenge to his second degree murder conviction in Speig-ner v. Jago, supra, inevitably invites comparison with this case. A divided panel of our court found that the proof in Speigner’s trial was constitutionally insufficient to support his conviction and upheld the district court’s grant of habeas corpus relief. Each judge on the panel viewed the evidence and the applicable legal standard for reviewing it somewhat differently. Judge Peck, accurately anticipating the Supreme Court’s decision in Jackson v. Virginia, supra, held that although there was “some” evidence in Speigner’s guilt, the evidence was insufficient to support a finding of guilt beyond a reasonable doubt under a broader reading of the “no evidence”" }, { "docid": "1756324", "title": "", "text": "the crime with which he is charged.’” Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)). However, “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt....” Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, “in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254—if the settled procedural prerequisites for such a claim have otherwise been satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92. Petitioner Jones bears a very heavy burden: [T]he standard for appellate review of an insufficiency claim placed a “very heavy burden” on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor. United States v. Carson, 702 F.2d 351, 361 (2d Cir.1983) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983). The habeas court’s review of the jury’s findings is limited: [T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable" }, { "docid": "13531372", "title": "", "text": "483 (1979); United States v. Cary, 470 F.2d 469 (D.C.Cir.1972). Austin testified that Duncan’s visit to his house was the first time they had met, and that he was “positive” Duncan and Zachery had entered only his kitchen and dining room during their visit. Austin served breakfast to them and they left a few minutes later. Austin testified that he kept his liquor in the den, at the opposite end of the house from the kitchen and dining room. The import of Austin’s testimony is that Duncan had no access to the vodka bottle at any time prior to the robbery. Considering Austin’s testimony and the fingerprint evidence together, in the light most favorable to the prosecution, we hold that a rational jury could conclude beyond a reasonable doubt that the fingerprints were impressed at the time that Duncan committed the robbery. Conflicting testimony from a defense witness, who stated that Duncan and Austin had “partied” together at Austin’s home on other occasions, does not alter this holding. It was the jury’s duty to weigh conflicting evidence and resolve credibility issues. “[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson v. Virginia, 443 U.S. at 326, 99 S.Ct. at 2792. Duncan’s second contention is that his constitutional rights were violated by the following statement made by the district attorney in his closing argument: [TJhere has been no evidence in this case from the defense at all that Duncan was not in that house on Monday. ... Have you heard any evidence from any defense witness that says he was not there on Monday, November 27, 1978? Duncan argues that this remark was an impermissible reference to his failure to testify, and that it had the effect of shifting the burden of proof to Duncan. We do not think the district attorney’s comment “was manifestly intended or was of" }, { "docid": "1831031", "title": "", "text": "court’s action caused de fendant to suffer substantial actual prejudice), cert. denied sub nom., Odoner v. United States, — U.S.-, 107 U.S. 168, 93 L.Ed.2d 106 (1986). Willard has not identified any specific instances of prejudice resulting from the trial court’s failure to sever the crimes. Willard asks this court to presume prejudice because the number of witnesses and exhibits at trial (51 witnesses and 150 exhibits) made it impossible for the jury to distinguish the evidence and intelligently apply the law. Willard does not explain why the number of witnesses and exhibits at trial prevented the jury from properly performing its duties. The Indiana Supreme Court found that trying all the crimes at the same trial would not cause confusion or hinder a fair determination of Willard’s guilt. 272 Ind. at 596, 400 N.E.2d at 156. As the district court noted, the number of charges and amount of evidence in this case do not raise an inference of prejudice. Furthermore, the crimes were all part of an ongoing scheme so that evidence of any one crime was evidence of the entire criminal transaction. Id. Therefore, we doubt a severance would have benefit-ted Willard anyway. The district court properly denied habeas corpus relief on this ground. B. Sufficiency of the Evidence Willard contends there was insufficient evidence to convict him of Counts II (burglary), IV (burglary), and VIII (arson). A federal court may grant habeas corpus relief on an insufficient evidence claim only if, after viewing the evidence in the light most favorable to the prosecution, the court finds that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The federal habeas court must assume that the jury resolved all evidentiary conflicts and found all reasonable inferences in the state’s favor. See id. at 326, 99 S.Ct. at 2792; United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985). The record reveals that" }, { "docid": "1694202", "title": "", "text": "where the issue is the sufficiency of the evidence to sustain the conviction. Pri- or to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), challenges to state convictions based on insufficiency of evidence were not seen as presenting any constitutional issues suitable for habeas corpus review. As long as there was some evidence to support the conviction, it would not be overturned on habeas. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Under Jackson, sufficiency of evidence is now a federal constitutional issue. However, Jackson does not require, or permit, federal courts to review the evidence de novo and, in effect, try the case anew. Our role is strictly limited. Even if we, after thoroughly reviewing the record, do not believe that there is sufficient evidence to sustain the conviction, we cannot grant the writ of habeas corpus unless we can say, after making all reasonable inferences in favor of the state, that no rational trier of fact could find the defendant guilty beyond a reasonable doubt. Neither the appellate court nor the district court need “satisfy itself of proof beyond a reasonable doubt'.... [S]uch a standard of review . .. would not comport with the rule announced in Jackson .. . and would in fact invade the province of the factfinder at trial .. . . ” Holloway v. McElroy, 632 F.2d 605, 640 n.54 (5th Cir. 1980). See also United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir. 1980) (“It is not our task to weigh the evidence or to assess the credibility of the witnesses.”); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1776, 64 L.Ed.2d 398 (1980) (White, J., dissenting) (“the issue here is not what our verdict would have been, but whether ‘any rational factfinder’ could have found [sufficient evidence].”). The problem here is that the majority has in effect undertaken a de novo review of the evidence using the typewritten transcript of the testimony. Although the majority correctly points out that this case can be distinguished from other, similar cases," }, { "docid": "23451443", "title": "", "text": "is set forth in Jackson v. Virginia : [T]he applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 324, 99 S.Ct. at 2791. We are to “view the evidence in the light most favorable to the prosecution,” and “all of the evidence is to be considered.” Id. at 319, 99, S.Ct. at 2789. The Supreme Court has further explained that the Jackson standard is a “more stringent test” than a “more likely than not” standard. Ulster, supra, 442 U.S. at 166, 99 S.Ct. at 2229. How much more stringent is uncertain, but it is at least clear that if the reviewing court is convinced by the evidence only that the defendant is more likely than not guilty then the evidence is not sufficient for conviction. The inference of burglary from recent possession of stolen goods on which the state relies is of ancient vintage and has widespread acceptance. See generally, U. S. v. Jones, 418 F.2d 818, 821-22; 9 Wigmore on Evidence § 2513 (Chadbourn ed. 1981); cases collected in West’s Federal Practice Digest at Burglary # 42, Larceny # 64, and Robbery # 24.1(5). We note particularly the Supreme Court’s acceptance of this inference. In Dunlop v. United States, 165 U.S. 486, 502, 17 S.Ct. 375, 330, 41 L.Ed. 799 (1897), the Court stated broadly in dictum that “if property recently stolen be found in the possession of a certain person, it may be presumed that he stole it, and such presumption is sufficient to authorize the jury to convict, notwithstanding the presumption of innocence.” In McNamara v. Henkel, 226 U.S. 520, 524-25, 33 S.Ct. 146, 147, 57 L.Ed. 330 (1913), where the issue was whether there was any com petent evidence to support an arrest for burglary, the Court held that “[possession [of “the fruits of the burglarious entry”] in the[] circumstances [of this case] tended to show guilty participation in the burglary.” Finally, in Wilson v. U. S.," }, { "docid": "6010636", "title": "", "text": "of the People’s witnesses, and that all of the eyewitnesses were Jay’s friends. (Id. at 5-6.) Nevertheless, Vera says his habeas petition “is not a challenge based on the credibility of the witnesses,” but rather is the absence of evidence of intent. (Id. at 6-7.) “[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (quoting In re Win- ship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)). However, “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt ...” Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, “in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92. Petitioner Vera bears a “very heavy burden”: [T]he standard for appellate review of an insufficiency claim placed a “very heavy burden” on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor. United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983). Accord, e.g., United States v. Strauss, 999 F.2d 692, 696 (2d Cir.1993) (burden on defendant is “ “very" }, { "docid": "23351130", "title": "", "text": "hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have been otherwise satisfied-the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. 443 U.S. at 324, 99 S.Ct. at 2792. In footnote, the Court directed that this standard be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Id. at 324 n. 16, 99 S.Ct. at 2792 n. 16. Several previous opinions of this court have raised the question of whether Jackson should be applied in reviewing convictions obtained before the date on which Jackson was announced. In those cases, however, we have found the evidence sufficient to support the conviction even if the stricter Jackson standard of review was applied; thus, we have reserved the question for a case in which the application of the Jackson standard made a difference in the outcome. See Sims v. Hopper, 603 F.2d 581, 582 (5th Cir. 1979); Pate v. Wainwright, 607 F.2d 669, 670 (5th Cir. 1979); Tyler v. Phelps, 622 F.2d 172, 178 (5th Cir. 1980); Preacher v. Estelle, 626 F.2d 1222, 1224-25 (5th Cir. 1980). Cf. Parrish v. Wainwright, 614 F.2d 1028, 1029 (5th Cir. 1980) (assuming arguendo that the Jackson standard should be used in reviewing the sufficiency of the evidence to sustain a parole revocation). But see Reese v. Wainwright, 600 F.2d 1085, 1089-90 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979) (applying Jackson standard without reservation to pre-Jackson conviction); Llewellyn v. Stynchcombe, 609 F.2d 194, 196 (5th Cir. 1980) (same). We think that the State fundamentally misconceives what the Jackson Court was doing. Jackson announces a new standard of collateral review. It does not affect in any way the obligations of the prosecutors or state trial courts: the standard of proof to which they are bound is that laid down" }, { "docid": "13531371", "title": "", "text": "U.S. at 326, 99 S.Ct. at 2792; Holloway v. McElroy, 632 F.2d 605, 640 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). Under Georgia law, fingerprint evidence can warrant a conviction if fingerprints corresponding to those of the accused have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time the crime was committed. Glover v. State, 149 Ga.App. 369, 254 S.E.2d 492, 493, cert. denied, 149 Ga.App. 898 (1979); Anthony v. State, 85 Ga.App. 119, 68 S.E.2d 150, 152 (1951). We discern no constitutional problems with this rule. Thus we hold that fingerprint evidence alone, under proper circumstances, can be sufficient to sustain a conviction for an offense like burglary against constitutional attack on the sufficiency of evidence principles set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See United States v. Lamartina, 584 F.2d 764 (6th Cir.1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1263, 59 L.Ed.2d 483 (1979); United States v. Cary, 470 F.2d 469 (D.C.Cir.1972). Austin testified that Duncan’s visit to his house was the first time they had met, and that he was “positive” Duncan and Zachery had entered only his kitchen and dining room during their visit. Austin served breakfast to them and they left a few minutes later. Austin testified that he kept his liquor in the den, at the opposite end of the house from the kitchen and dining room. The import of Austin’s testimony is that Duncan had no access to the vodka bottle at any time prior to the robbery. Considering Austin’s testimony and the fingerprint evidence together, in the light most favorable to the prosecution, we hold that a rational jury could conclude beyond a reasonable doubt that the fingerprints were impressed at the time that Duncan committed the robbery. Conflicting testimony from a defense witness, who stated that Duncan and Austin had “partied” together at Austin’s home on other occasions, does not alter this holding. It was the jury’s duty to weigh" }, { "docid": "18326696", "title": "", "text": "the petitioner exhausted his available state-remedies as to the questions presented herein. 28 U.S.C. § 2254(b). I. The petitioner claims the constitutional-insufficiency of the evidence at his trial on such charges to support any of the convictions of crime for which he is held in custody by the respondent-warden. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “* * * [I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. [Footnote reference omitted.] * * * ” Ibid., 443 U.S. at 324, 99 S.Ct. at 2791-2792 [10], “ * * * [N]o person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. * * * ” Ibid., 443 U.S. at 316, 99 S.Ct. at 2787 [6]. That, of course, assumes a properly-instructed jury. Ibid., 443 U.S. at 317, 99 S.Ct. at 2788. “A federal court has a duty to assess the historical facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court. * * * “ * * * [T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ * * * Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the" }, { "docid": "7784376", "title": "", "text": "is whether the foregoing facts are sufficient to sustain the murder conviction of Cornell Fuller. In In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), the Supreme Court held that the due process clause requires that all criminal convictions must be based upon proof beyond a reasonable doubt. In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that this standard has application in the law of habeas corpus: [I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 . . . the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Id. at 324, 99 S.Ct. at 2792. In applying this standard in habeas corpus cases, the federal courts must review the evidence in the light most favorable to the prosecution. The petition must be denied if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789. See also Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979); Brewer v. Overberg, 624 F.2d 51 (6th Cir. 1980), cert. denied, 449 U.S. 1085, 101 S.Ct. 873, 66 L.Ed.2d 810 (1981); Davis v. Campbell, 608 F.2d 317 (8th Cir. 1979). The district court recognized that conflicts in the evidence must be resolved in favor of the State, but nevertheless found that the evidence introduced at trial was too meager to support the petitioner’s conviction. We agree with the district court’s conclusion. Under Jackson v. Virginia, we must examine the sufficiency of the evidence here in support of each element of the petitioner’s offense. Fuller was convicted of felony murder in Michigan. A felony murder conviction under M.C.L.A. § 750.316; M.S.A. § 28.548 requires proof of each element of the underlying felony. People v. Allen, 39 Mich.App. 483, 494, 197 N.W.2d 874 (1972) (Levin, J., dissenting), adopted, 390 Mich." } ]

[ { "docid": "22991493", "title": "", "text": "only aliens crossing daily from Canada to labor in the United States, but, if followed, will extend to include those entering the United States for the same purpose from all countries, including Canada, who intend to remain for any period of time embraced within the meaning of the word “ temporary.” By the immigration rules, this time is defined as a reasonable fixed period to be determined by the examining officer, which may be extended from time to time, though not to exceed one year altogether from the date of original entry. Thus, if the view of the court below prevail, it will result that aliens — not native of Canada or any other American country named in § 4 (c), — whose entry as immigrants is precluded, may land as temporary visitors and remain at work in the United States for weeks or months at a time. First. The pertinent provision of Article III of the Jay Treaty follows: “ It is agreed that it shall at all times be free to his Majesty’s subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line; freely to pass and repass by land or inland navigation, into'the respective territories and countries of the two parties, on the continent of America (the country within the limits of the Hudson’s bay Company, only excepted) and to navigate all the lakes; rivers and waters thereof, and freely to carry on trade and commerce with each other.....” The position of the Government is that (1) there is no conflict between the treaty and the statute, but, (2) in any event, the treaty provision relied on was abrogated by the War of 1812. We pass at once to a consideration of the second contention; since if that be sustained the first becomes immaterial and the statute open to construction unembarrassed by the treaty. The effect of war upon treaties is a subject in respect of which there are widely divergent opinions. The doctrine sometimes asserted, especially by the older writers, that war ipso" } ]

[ { "docid": "860716", "title": "", "text": "on either side of the American and Canadian border, and, thus, to exempt Canadian-born Indians from all immigration restrictions imposed on aliens by tlje Immigration and Nationality Act. The legislative history of Section 1359 confirms the correctness of plaintiffs’ interpretation. Article III of the 1794 Jay Treaty, coupled with the Explanatory Article of 1796, recognized the right of American Indians to unfettered movement throughout the territories occupied by them which had been divided by the International Boundary between the United States and Canada established by the Peace of Paris in 1783. United States immigration officials evidently acknowledged a right in Canadian-born Indians to cross the International Boundary and to remain in the United States free from the usual restrictions placed on aliens until the passage of the Immigration and Nationality Act of 1924. With the enactment of the 1924 Act, the Department of Labor determined that .Indians were ineligible for admission because they were ineligible for citizenship, and began deporting Canadian-born Indians who had entered the country without registering as aliens and without obtaining immigrant visas. Shortly thereafter, the Department’s policy was successfully challenged in United States ex rel. Diabo v. McCandless, 18 F.2d 282 (E.D.Pa.1927), aff’d, 25 F.2d 71 (3rd Cir. 1928). In McCandless, a full-blooded Iroquois born in Canada who had come into the United States to work intermittently from 1912 to 1925 was arrested in 1925 and was ordered deported for entering the United States without complying with the immigration laws; he petitioned for a writ of habeas corpus on the ground that, as a member of an Indian tribe referred to in the Jay Treaty, he was exempt from the requirements of the immigration laws. The Department of Labor argued that Article III of the Jay Treaty had been abrogated by the War of 1812. The District Court ruled that American Indians had an aboriginal right to move “unobstructed” within the area affected by the boundary line; that this right was recognized only, and not created, by Article III of the Jay Treaty; and that, therefore, it was immaterial whether or not the War of 1812" }, { "docid": "6273420", "title": "", "text": "nations subsequent to a treaty ends all prior treaty rights, all provisions of the Jay Treaty came to an end by reason of the War of 1812. But it will be observed that we are not here dealing -with the rights and obligations of the two signatories to that treaty to and'from each other, but with the rights of a third party created by the joint action of the signatories. While it may be contended that in the nature of things treaties and treaty rights end by war, and if they are to again exist it must be by a new treaty, this reasoning does not apply to these Indians. If through the War of 1812 the Six Nations remained neutral, as they had through the Revolutionary War, there was no reason why either of the contending nations in 1812 should desire to change the status of the Six Nations and thereby anger and drive them into hostilities. They had contended, when the Jay Treaty was being negotiated, that they should have free access to all parts of their tribal territory by consent of both nations. And there was no reason why this right should come to an end because the two nations became involved in war, while they remained neutral. On the other hand, if any part of the Six Nations, as for example the Canadian tribe of which this petitioner is a member, took part against the United States, then the Treaty of Ghent, which in article 9 provided: “The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possessions, rights and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities,” recognized and restored the Indian status of the Jay Treaty. But, apart from this, we think the rights of these Indians under" }, { "docid": "9560701", "title": "", "text": "the Canadian side, and that intercourse and communication between these portions of the tribe are continuous. It also appears that for some years the protestant, together with many others of her tribe, have been manufacturing baskets such as those in question here, for sale wherever they could be disposed of; that the protestant, on the occasion of the importation in question, was bringing the baskets across the line to dispose of them at the store of one McKinnon, who was in the business of purchasing such baskets from the Indians for resale; and that the amount received by the protestant for her baskets was $2, one-half of which was paid for duty imposed. It is also shown that the protestant was not carrying these baskets as a part of her household effects, but had manufactured the same, and was importing them, for sale in the United States. As the baskets were brought into the United States they were in two bundles, twelve in a bundle; the baskets in each bundle being fastened together by loops through their respective handles. Each basket was about six inches wide and about 8 inches high. As fastened together, they fitted into each other and made compact bundles which could be easily carried. The United States Customs Court sustained the protest, holding that the case was controlled by McCandless v. United States, 25 F.(2d) 71, a decision of the Circuit Court of Appeals for the Third Circuit. The Government brings the matter here by appeal, and contends that the court below was in error for three specific reasons which are specified in the Government’s brief as follows: “(1) Article 3 of the Jay Treaty of 1794 was annulled by the War of 1812. “(2) Alternatively, if article 3 of the Jay Treaty was not abrogated by the War of 1812, it is, nevertheless, in conflict with a subsequent statute. It is well settled that when a Treaty and a Statute are in conflict, that which is later in date prevails. “(3) Assuming, for the sake of argument, that article 3 was not abrogated but is" }, { "docid": "9560711", "title": "", "text": "the order of discharge, holding that the general acts of Congress did not apply to members of the Indian tribes. Article 3 of the Jay Treaty was brought into question and was discussed at length. The court held that the declaration of the War of 1812 did not end the treaty rights secured to the Indians through the said Jay Treaty, so long as they remained neutral. Finally the court held that the rights granted by said article 3 were permanent, and were, at most, only suspended during the existence of the War of 1812. Therefore, it was held that the petitioner might pass and repass freely, under and by virtue of the provisions of said article 3. This case was not appealed to the Supreme Court. This may have been occasioned by the fact that on April 2, 1928, an act of Congress was approved which provided that the Immigration Act of 1924 should not apply to Indians crossing the international border (45 Stat. 401 [8 U.S.C.A. § 226a]). In 1929, the case of Karnuth, Director of Immigration, et al. v. United States, on petition of Albro, 279 U.S. 231, 49 S.Ct. 274, 276, 73 L.Ed. 677, came before the Supreme Court, and was decided. A writ of habeas corpus had been sued out on be half of two aliens who were detained by immigration officials, and who had entered this country from Canada. The respondent Mary Cook was a British subject, born in Scotland, who came to Canada in 1924. The respondent Antonio Danelon was a native of Italy who came to Canada in 1923. These persons resided at Niagara Falls, Ontario. The latter claimed to be a Canadian citizen, by reason of his father’s naturalization. Both respondents had been crossing back and forth over the boundary line, in pursuance of employment in the United States, for a considerable period before their detention. The Federal District Court sustained the action of the immigration officials and dismissed the writ. This judgment, on appeal, was reversed by the Circuit Court of Appeals, which held that if the statute were so" }, { "docid": "860720", "title": "", "text": "the aboriginal right of free passage or Article III of the Jay Treaty. In either case, absent any indication to the contrary, and irrespective of the present status of the Jay Treaty, it is reasonable to assume that Congress’ purpose in using the Jay Treaty language in the 1928 Act was to recognize and secure the right of free passage as it had been guaranteed by that Treaty and delineated by the District Court decision in McCandless. Finally, two cardinal principles of statutory construction buttress plaintiffs’ position that Section 1359 exempts these Indians from the alien registration requirements of Section 1302, as well as from the visa requirements of Section 1301: (1) the language of statutes and treaties affecting Indians must be construed in a nontechnical sense, as the Indians themselves would have understood it and in a manner reflecting the conditions prompting its adoption, and (2) ambiguities in statutes and treaties conferring benefits on Indians are to be resolved in favor of the Indians. Re statutory construction: Squire v. Capoeman, 351 U.S. 1, 6-8, 76 S.Ct. 611, 100 L.Ed. 883 (1956) ; Waldron v. United States, 143 F. 413, 418-19 (Cir. Ct.D.S.D.1905); see U. S. Department of the Interior, Federal Indian Law at 401 (U. S. Government Printing Office, 1958). Re treaty construction: McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174-175, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970); Menominee Tribe v. United States, 391 U.S. 404, 406, n. 2, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Peoria Tribe v. United States, 390 U.S. 468, 472-473, 88 S.Ct. 1137, 20 L.Ed.2d 39 (1968); Tulee v. Washington, 315 U.S. 681, 684-685, 62 S.Ct. 862, 86 L.Ed. 1115 (1942); United States v. Shoshone Tribe, 304 U.S. 111, 116, 58 S.Ct. 794, 82 L.Ed. 1213 (1938); Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 74 L.Ed. 478 (1930); United States v. Payne, 264 U.S. 446, 448-449, 44 S.Ct. 352, 68 L.Ed. 782 (1924); Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207," }, { "docid": "860696", "title": "", "text": "peltries brought by land, or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any import or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians. Article XXVIII of the Jay Treaty also provided: It is agreed, that the first ten articles of this treaty shall be permanent In 1796, the United States and Great Britain further agreed to the Explanatory Article of May 4, 1796, 8 Stat. 130, which provided in part: That no stipulations in any treaty subsequently concluded by either of the contracting parties with any other state' or nation, or with any Indian tribe, can be understood to derogate in any manner from the rights of free intercourse and commerce, secured by the aforesaid third article of the treaty of amity, commerce and navigation to the subjects of his Majesty and to the citizens of the United States, and to the Indians dwelling on either side of the boundary—line aforesaid; but that all the said persons shall remain at full liberty freely to pass and repass by land or inland navigation, into the respective territories and countries of the contracting parties, on either side of said boundary —line, and freely to carry on trade and commerce with each other, according to the stipulations of the said third article of the treaty of amity, commerce and navigation. The provision of Article III of the Jay Treaty relating to duties was incorporated in various tariff acts until 1897, but the Article III language granting Indians the right to enter duty free was not included in the Tariff Act of 1897, 30 Stat. 151, and it has not been included in any subsequent tariff act. Although the exact' time when duties were first charged on goods brought across the border by Indians is not known, in 1937, the Court of Customs and Patent Appeals held in United States v. Garrow, 88 F.2d 318 (C.C.P.A.), cert." }, { "docid": "860726", "title": "", "text": "States ex reí. Diabo v. McCandless, supra. Plaintiffs’ claim that the International Boundary does not exist with respect to them is not supported by the Court of Appeals’ decision in McCandless, which affirmed the District Court on significantly different grounds, or by the language of the Treaty, which by confirming the right of Indians “to pass and repass” between Canada and the United States plainly recognized the existence of an international boundary line. . With their brief in opposition to the defendant’s motion to dismiss for lack of subject matter jurisdiction, plaintiffs submitted an affidavit of Gaddis Smith, a professor of American diplomatic history at Yale University, which purports to construe portions of Article III of the Jay Treaty relevant to the merits of the j)laintiffs’ claims for relief against the Secretary. The defendant has moved to strike Professor Smith's affidavit on the ground that it is not made upon personal knowledge as required by Fed.R.Civ.P. 56(e). As the Court has concluded that 28 U.S.C. §§ 1582 and 1340 leave it without jurisdiction over plaintiffs’ claims for relief against the Secretary, it is necessary neither to consider the affidavit nor to rule upon the motion to strike. . See n. 1, supra. . See n. 2, supra. . The Third Circuit Court of Appeals, while agreeing that Article III of the Jay Treaty merely recognized and did not create the right of the Indians to move freely over their aboriginal territories, affirmed the District Court on the significantly different ground that the Jay Treaty continued in force despite the War of 1812. 25 F.2d at 72-73. In United States v. Garrow, 88 F.2d 318 (C.C.P.A.1937), the Court of Customs and Patent Appeals reached a contrary conclusion as to the continued efficacy of the Jay Treaty. Relying on Karnuth v. United States, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677 (1929), the Garrow court found that the rights of Indians under Article III of the Jay Treaty had been abrogated by the War of 1812. But cf., United States v. Karnuth, 74 F.Supp. 660, 662 (W.D.N.Y.1947). However, the instant case" }, { "docid": "9560702", "title": "", "text": "through their respective handles. Each basket was about six inches wide and about 8 inches high. As fastened together, they fitted into each other and made compact bundles which could be easily carried. The United States Customs Court sustained the protest, holding that the case was controlled by McCandless v. United States, 25 F.(2d) 71, a decision of the Circuit Court of Appeals for the Third Circuit. The Government brings the matter here by appeal, and contends that the court below was in error for three specific reasons which are specified in the Government’s brief as follows: “(1) Article 3 of the Jay Treaty of 1794 was annulled by the War of 1812. “(2) Alternatively, if article 3 of the Jay Treaty was not abrogated by the War of 1812, it is, nevertheless, in conflict with a subsequent statute. It is well settled that when a Treaty and a Statute are in conflict, that which is later in date prevails. “(3) Assuming, for the sake of argument, that article 3 was not abrogated but is still in force and effect, the importation is not within the purview of the language of said article 3.” On the other hand, counsel for the appellee contends .that article 3 of the Jay Treaty of 1794 is still in'full force and effect, and that under this treaty the imported goods are free of duty. The claim is thus stated: “The appellee’s claim is that-article 3 of the Jay Treaty of 1794, at least insofar as it applies to bona fide Indians, is still in effect and the merchandise in question is free from duty.” It will be necessary to examine the provisions of the involved treaty, and the legislation and history of the times since the ratification of the Jay Treaty, in order to come to a proper conclusion as to the claims of the appellee to exemption from duty. The Jay Treaty of 1794, in article 3 thereof, contained the following provisions : “It is agreed that it shall at all times be free to his Majesty’s subjects, and to the citizens of" }, { "docid": "860727", "title": "", "text": "claims for relief against the Secretary, it is necessary neither to consider the affidavit nor to rule upon the motion to strike. . See n. 1, supra. . See n. 2, supra. . The Third Circuit Court of Appeals, while agreeing that Article III of the Jay Treaty merely recognized and did not create the right of the Indians to move freely over their aboriginal territories, affirmed the District Court on the significantly different ground that the Jay Treaty continued in force despite the War of 1812. 25 F.2d at 72-73. In United States v. Garrow, 88 F.2d 318 (C.C.P.A.1937), the Court of Customs and Patent Appeals reached a contrary conclusion as to the continued efficacy of the Jay Treaty. Relying on Karnuth v. United States, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677 (1929), the Garrow court found that the rights of Indians under Article III of the Jay Treaty had been abrogated by the War of 1812. But cf., United States v. Karnuth, 74 F.Supp. 660, 662 (W.D.N.Y.1947). However, the instant case does not require resolution of this question. The issue presently before this Court is not the status of the Jay Treaty or of any right guaranteed thereunder; the parties are in agreement that a right, irrespective of its source, exists. Rather, tire question here is one of statutory construction—what Congress intended as the scope of these plaintiffs’ right “to pass” as recognized by 8 U.S.C. § 1359. . In sponsoring the bill which was enacted as 45 Stat. 401, Representative MacGregor of New York characterized it as a bill “to exempt American Indians born in Canada from the operation of the immigration act of 1924.” 69 Cong.Rec. at 5581. He included in his remarks an explanation of the Department of Labor’s application of the immigration laws to such Indians and of the successful challenge to that policy in Mc-Candlesx. Id. at 5582. . In accordance -with defendants’ request, the Court will refer consideration of plaintiffs’ prayer for their costs and attorneys’ fees pending further briefing and oral argument." }, { "docid": "860698", "title": "", "text": "denied, 302 U.S. 695, 58 S.Ct. 14, 82 L.Ed. 537 (1937), that Article III of the Jay Treaty had been abrogated by the War of 1812, and that the right of Indians to enter duty-free, insofar as it had been created, by statute, lapsed in 1897 when the Article III language incor porated in previous tariff acts was not renewed. Relying on the court’s ruling in Garrow, the Secretary, through the Bureau of the Customs, has been levying customs duties on goods brought into the United States by Indians, including these plaintiffs. Immigration officials evidently recognized a right in Canadian-born Indians to cross the International Boundary and to remain in the United States free from the usual restrictions placed on aliens until the passage of the Immigration and Nationality Act of 1924, 43 Stat. 153, at which time the Department of Labor began deporting Canadian-born Indians who had entered the country without registering as aliens and without obtaining immigrant visas. Following a successful court challenge to the Department’s policy, United States ex rel. Diabo v. McCandless, 18 F.2d 282 (E.D.Pa.1927), aff’d, 25 F.2d 71 (3rd Cir. 1928), Congress, in 1928, enacted legislation, currently codified (as amended) as 8 U.S.C. § 1359, which provides as follows: Nothing in this subchapter [dealing with immigration] shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race. It has been, and continues to be, the position of the Attorney General that Section 1359 exempts Canadian-born Indians from the pre-entry alien registration and visa requirements of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1301, but that Section 1359 does not exempt them from the post-entry alien registration and notification requirements of the Act, 8 U. S.C. §§ 1302(a), 1305, 1306, if they wish to remain in the United States for 30 days or more. In accordance with this policy, the Attorney General has not required Canadian-born Indians to" }, { "docid": "6273419", "title": "", "text": "state or nation, or with any Indian tribe, can be understood to derogate in any manner from the rights of free intercourse and commerce, secured by the aforesaid third article of the treaty of amity, commerce and navigation, to the subjects of his majesty and to the citizens of the United States, and to the Indians dwelling on either side of the boundary line aforesaid; but that all the said persons shall remain at full liberty freely to pass and repass, by land or inland navigation, into the respective territories and countries of the contracting parties, on either side of the said boundary line, and freely to carry on trade and commerce with each other, according to the stipulations of the said third article of the treaty of amity, commerce and navigation.” If this treaty, whieh as a treaty would have the force of law, is still in force, the petitioner cannot be deported for entering the country under the provisions thereof. But it is contended that, on the general principle that a war between nations subsequent to a treaty ends all prior treaty rights, all provisions of the Jay Treaty came to an end by reason of the War of 1812. But it will be observed that we are not here dealing -with the rights and obligations of the two signatories to that treaty to and'from each other, but with the rights of a third party created by the joint action of the signatories. While it may be contended that in the nature of things treaties and treaty rights end by war, and if they are to again exist it must be by a new treaty, this reasoning does not apply to these Indians. If through the War of 1812 the Six Nations remained neutral, as they had through the Revolutionary War, there was no reason why either of the contending nations in 1812 should desire to change the status of the Six Nations and thereby anger and drive them into hostilities. They had contended, when the Jay Treaty was being negotiated, that they should have free access to" }, { "docid": "860717", "title": "", "text": "visas. Shortly thereafter, the Department’s policy was successfully challenged in United States ex rel. Diabo v. McCandless, 18 F.2d 282 (E.D.Pa.1927), aff’d, 25 F.2d 71 (3rd Cir. 1928). In McCandless, a full-blooded Iroquois born in Canada who had come into the United States to work intermittently from 1912 to 1925 was arrested in 1925 and was ordered deported for entering the United States without complying with the immigration laws; he petitioned for a writ of habeas corpus on the ground that, as a member of an Indian tribe referred to in the Jay Treaty, he was exempt from the requirements of the immigration laws. The Department of Labor argued that Article III of the Jay Treaty had been abrogated by the War of 1812. The District Court ruled that American Indians had an aboriginal right to move “unobstructed” within the area affected by the boundary line; that this right was recognized only, and not created, by Article III of the Jay Treaty; and that, therefore, it was immaterial whether or not the War of 1812 had operated to abrogate the Jay Treaty. The court held that Canadian-born American Indians were not aliens subject to the immigration laws. 18 F. 2d at 283. It was against this background that Congress, in 1928, enacted the statutory predecessor to 8 U.S.C. § 1359, which read: That the Immigration [and Nationality] Act of 1924 shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States. 45 Stat. 401. The Congressional debates, 69 Cong.Rec. 5581-82, 70th Cong., 1st Sess. (March 29, 1928), indicate that the purpose of the 1928 legislation was to correct by statute the Department of Labor’s erroneous application of the 1924 Act to American Indians and to reaffirm the right of these Indians to free mobility into and within the United States, a right which had been acknowledged by the Department prior to the 1924 Act and had been recently recognized by the decision of the District Court in McCandless. The source of the language used by Congress in the" }, { "docid": "9560710", "title": "", "text": "of this Act are hereby repealed, said repeal to take effect on and after the passage of this Act.” The quoted provisions of article 3 of the Jay Treaty of 1794 were, as we have heretofore stated, self-executing. The Act of March 2, 1799, § 105, was therefore not requisite to give the provisions of said article 3 full force and effect, but was only confirmatory of the rights granted by said treaty. The trial court relied strongly upon Mc-Candless v. United States, supra, decided March 9, 1928. In that case, which involved a writ of habeas corpus, a full-blooded Indian of the Iroquois Tribe, born in Canada, crossed the border line from Canada and was arrested on complaint of the Commissioner of Immigration for an alleged violation of law in entering the United States without complying with the immigration laws. He was ordered deported, whereupon he sued out a writ of habeas corpus. The United States District Court granted the writ and discharged the petitioner. The Circuit Court, speaking through Buffington, Circuit Judge, affirmed the order of discharge, holding that the general acts of Congress did not apply to members of the Indian tribes. Article 3 of the Jay Treaty was brought into question and was discussed at length. The court held that the declaration of the War of 1812 did not end the treaty rights secured to the Indians through the said Jay Treaty, so long as they remained neutral. Finally the court held that the rights granted by said article 3 were permanent, and were, at most, only suspended during the existence of the War of 1812. Therefore, it was held that the petitioner might pass and repass freely, under and by virtue of the provisions of said article 3. This case was not appealed to the Supreme Court. This may have been occasioned by the fact that on April 2, 1928, an act of Congress was approved which provided that the Immigration Act of 1924 should not apply to Indians crossing the international border (45 Stat. 401 [8 U.S.C.A. § 226a]). In 1929, the case of" }, { "docid": "9560712", "title": "", "text": "Karnuth, Director of Immigration, et al. v. United States, on petition of Albro, 279 U.S. 231, 49 S.Ct. 274, 276, 73 L.Ed. 677, came before the Supreme Court, and was decided. A writ of habeas corpus had been sued out on be half of two aliens who were detained by immigration officials, and who had entered this country from Canada. The respondent Mary Cook was a British subject, born in Scotland, who came to Canada in 1924. The respondent Antonio Danelon was a native of Italy who came to Canada in 1923. These persons resided at Niagara Falls, Ontario. The latter claimed to be a Canadian citizen, by reason of his father’s naturalization. Both respondents had been crossing back and forth over the boundary line, in pursuance of employment in the United States, for a considerable period before their detention. The Federal District Court sustained the action of the immigration officials and dismissed the writ. This judgment, on appeal, was reversed by the Circuit Court of Appeals, which held that if the statute were so construed as to exclude the aliens in question, it would conflict with article 3 of the Jay Treaty of 1794. Certiorari was granted and the case came before the Supreme Court. That court referred to the hereinbefore quoted provisions of said article 3 of the Jay Treaty. The contention made by government counsel was that the treaty provision relied on was abrogated by the War of 1812, and it was upon this point that the case was decided. The court, speaking through Mr. Justice Sutherland, expressed the views that the doctrine that war ipso facto annuls treaties of every kind between the warring nations was repudiated by the great weight of modern authority, and that whether the stipulations of a treaty are annulled by war depends upon their intrinsic character. The court cites, as instances of treaty obligations which remain in force during the state of war, such treaties as those of “cession, boundary, and the like; provisions giving the right to citizens or subjects of one of the high contracting powers to continue to" }, { "docid": "11023669", "title": "", "text": "■ of Amity, Commerce and Navigation (1794) between the United States and Great Britain, which provided: [N]or shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians. The Jay Treaty, Nov. 19, 1794, U.S.-Gr.Brit., 8 Stat. 116, 118. The government has argued persuasively that this argument grounded in the Jay Treaty was waived by defendants’ failure to press it sufficiently in the district court. In any event, we discern no error in the lower court proceedings on this ground. See generally Karnuth v. United States ex rel. Albro, 279 U.S. 231, 239, 49 S.Ct. 274, 277, 73 L.Ed. 677 (1929) (“[T]he privilege accorded by article 3 is one created by the treaty, having no obligatory existence apart from that instrument,.... It is, in no sense, a vested right. It is not permanent in its nature. It is wholly promissory and prospective, and necessarily ceases to operate in a state of war....”); Akins v. United States, 551 F.2d 1222, 1229-1230, 64 CCPA 68 (1977) (duty exemption of Jay Treaty was abrogated by the War of 1812, and though similar language was incorporated in federal tariff acts until 1897, upon repeal of that last act no such language preserving the right was reenacted thereafter). . Defendants need not personally use the wires as long as such use was a reasonably foreseeable part of the scheme in which they participated. See United States v. Maze, 414 U.S. 395, 399, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974); Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). . The wire fraud statute provides: Whoever, having devised or intending to devise any scheme or. artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire ... communication in interstate or foreign commerce, any" }, { "docid": "860718", "title": "", "text": "had operated to abrogate the Jay Treaty. The court held that Canadian-born American Indians were not aliens subject to the immigration laws. 18 F. 2d at 283. It was against this background that Congress, in 1928, enacted the statutory predecessor to 8 U.S.C. § 1359, which read: That the Immigration [and Nationality] Act of 1924 shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States. 45 Stat. 401. The Congressional debates, 69 Cong.Rec. 5581-82, 70th Cong., 1st Sess. (March 29, 1928), indicate that the purpose of the 1928 legislation was to correct by statute the Department of Labor’s erroneous application of the 1924 Act to American Indians and to reaffirm the right of these Indians to free mobility into and within the United States, a right which had been acknowledged by the Department prior to the 1924 Act and had been recently recognized by the decision of the District Court in McCandless. The source of the language used by Congress in the 1928 Act lends further support to the view that Congress did not intend a literal construction of the phrase “to pass.” Defendant concedes that the language “to pass” was taken from the Jay Treaty, the fact the statute used only the words “to pass” rather than the exact Treaty language “to pass and repass” being of no significance. As previously noted, defendant acknowledges that the 1928 statute did not purport to create any new right, but merely to make clear the Congressional intent that the Immigration and Nationality Act of 1924 did not abrogate an existing right belonging to American Indians born in Canada. At the time of the passage of the 1928 statute, the District Court decision in McCandless had defined that right as an aboriginal right of these Indians to move freely within their own territory without regard to the International Boundary and free of the restrictions imposed by the immigration laws. As also previously stated, Congress was aware of that decision. Thus, it matters not whether the origin of that right was" }, { "docid": "860725", "title": "", "text": "General of his current address as of the first day of every year and to notify the Attorney General of every change of address during any year. Section 1306 makes it a crime to fail to comply with either the Section 1302 registration requirements or the Section 1305 notification requirements. . In light of the court’s conclusion that the issue of importation is within the exclusive jurisdiction of the Customs Court, it is not necessary to consider whether the goods plaintiffs seek to bring into the country are “imports.” The Court will observe, however, that plaintiffs’ argument that they are not imports is predicated upon the dubious proposition that Article III of the Jay Treaty “erased” the International Boundary vis-a-vis the Indians living on either side of the border, and that it therefore cannot be said that an Indian crossing the border with his goods enters the United States from a foreign country. The argument is based, not on the words of the Jay Treaty, but on the holding of the District Court in United States ex reí. Diabo v. McCandless, supra. Plaintiffs’ claim that the International Boundary does not exist with respect to them is not supported by the Court of Appeals’ decision in McCandless, which affirmed the District Court on significantly different grounds, or by the language of the Treaty, which by confirming the right of Indians “to pass and repass” between Canada and the United States plainly recognized the existence of an international boundary line. . With their brief in opposition to the defendant’s motion to dismiss for lack of subject matter jurisdiction, plaintiffs submitted an affidavit of Gaddis Smith, a professor of American diplomatic history at Yale University, which purports to construe portions of Article III of the Jay Treaty relevant to the merits of the j)laintiffs’ claims for relief against the Secretary. The defendant has moved to strike Professor Smith's affidavit on the ground that it is not made upon personal knowledge as required by Fed.R.Civ.P. 56(e). As the Court has concluded that 28 U.S.C. §§ 1582 and 1340 leave it without jurisdiction over plaintiffs’" }, { "docid": "860697", "title": "", "text": "States, and to the Indians dwelling on either side of the boundary—line aforesaid; but that all the said persons shall remain at full liberty freely to pass and repass by land or inland navigation, into the respective territories and countries of the contracting parties, on either side of said boundary —line, and freely to carry on trade and commerce with each other, according to the stipulations of the said third article of the treaty of amity, commerce and navigation. The provision of Article III of the Jay Treaty relating to duties was incorporated in various tariff acts until 1897, but the Article III language granting Indians the right to enter duty free was not included in the Tariff Act of 1897, 30 Stat. 151, and it has not been included in any subsequent tariff act. Although the exact' time when duties were first charged on goods brought across the border by Indians is not known, in 1937, the Court of Customs and Patent Appeals held in United States v. Garrow, 88 F.2d 318 (C.C.P.A.), cert. denied, 302 U.S. 695, 58 S.Ct. 14, 82 L.Ed. 537 (1937), that Article III of the Jay Treaty had been abrogated by the War of 1812, and that the right of Indians to enter duty-free, insofar as it had been created, by statute, lapsed in 1897 when the Article III language incor porated in previous tariff acts was not renewed. Relying on the court’s ruling in Garrow, the Secretary, through the Bureau of the Customs, has been levying customs duties on goods brought into the United States by Indians, including these plaintiffs. Immigration officials evidently recognized a right in Canadian-born Indians to cross the International Boundary and to remain in the United States free from the usual restrictions placed on aliens until the passage of the Immigration and Nationality Act of 1924, 43 Stat. 153, at which time the Department of Labor began deporting Canadian-born Indians who had entered the country without registering as aliens and without obtaining immigrant visas. Following a successful court challenge to the Department’s policy, United States ex rel. Diabo v." }, { "docid": "6273421", "title": "", "text": "all parts of their tribal territory by consent of both nations. And there was no reason why this right should come to an end because the two nations became involved in war, while they remained neutral. On the other hand, if any part of the Six Nations, as for example the Canadian tribe of which this petitioner is a member, took part against the United States, then the Treaty of Ghent, which in article 9 provided: “The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possessions, rights and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities,” recognized and restored the Indian status of the Jay Treaty. But, apart from this, we think the rights of these Indians under the Jay Treaty wore not annihilated by the subsequent War of 1812. In Society v. New Haven, 8 Wheat. 492, 5 L. Ed. 662, the effect of this last war upon the Treaty of Peace of 1783 and the Jay Treaty of 1794 was involved; the court therein stating: “The last question respects the effect of the late war between Great Britain and the United States upon rights existing under the treaty of peace. Under this head, it is contended by the' defendant's counsel, that although the plaintiffs were protected by the treaty of peace, still, the effect of the last war was to put an end to that treaty, and, consequently, to civil rights derived under it, unless they had been revived and preserved by the Treaty of Ghent.” Discussing this question the court says: “But we are not inclined to admit the doctrine urged at the bar, that treaties become extinguished, ipso facto, by war between the two governments, unless they should he revived by an express or implied renewal on the return" }, { "docid": "860719", "title": "", "text": "1928 Act lends further support to the view that Congress did not intend a literal construction of the phrase “to pass.” Defendant concedes that the language “to pass” was taken from the Jay Treaty, the fact the statute used only the words “to pass” rather than the exact Treaty language “to pass and repass” being of no significance. As previously noted, defendant acknowledges that the 1928 statute did not purport to create any new right, but merely to make clear the Congressional intent that the Immigration and Nationality Act of 1924 did not abrogate an existing right belonging to American Indians born in Canada. At the time of the passage of the 1928 statute, the District Court decision in McCandless had defined that right as an aboriginal right of these Indians to move freely within their own territory without regard to the International Boundary and free of the restrictions imposed by the immigration laws. As also previously stated, Congress was aware of that decision. Thus, it matters not whether the origin of that right was the aboriginal right of free passage or Article III of the Jay Treaty. In either case, absent any indication to the contrary, and irrespective of the present status of the Jay Treaty, it is reasonable to assume that Congress’ purpose in using the Jay Treaty language in the 1928 Act was to recognize and secure the right of free passage as it had been guaranteed by that Treaty and delineated by the District Court decision in McCandless. Finally, two cardinal principles of statutory construction buttress plaintiffs’ position that Section 1359 exempts these Indians from the alien registration requirements of Section 1302, as well as from the visa requirements of Section 1301: (1) the language of statutes and treaties affecting Indians must be construed in a nontechnical sense, as the Indians themselves would have understood it and in a manner reflecting the conditions prompting its adoption, and (2) ambiguities in statutes and treaties conferring benefits on Indians are to be resolved in favor of the Indians. Re statutory construction: Squire v. Capoeman, 351 U.S. 1, 6-8," } ]

[ { "docid": "22719578", "title": "", "text": "Cantwell off the street. The one who testified he felt like hitting Cantwell said, in answer to the question “Did you do anything else or have any other reaction?” “No, sir, because he said he would take the victrola and he went.” The other witness testified that he told Cantwell he had better get off the street before something happened to him and that was the end of the matter as Cantwell picked up his books and walked up the street. Cantwell’s conduct, in the view of the court below, considered apart from the effect of his communication upon his hearers, did not amount to a breach of the peace. One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. We find in the instant case no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse. On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion. In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of" } ]

[ { "docid": "22088892", "title": "", "text": "trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.” See also Ill. Rev. Stat., 1949, c. 38, § 404. Similarly, the action of the trial court in deciding as a matter of law the libelous character of the utterance, leaving to the jury only the question of publication, follows the settled rule in prosecutions for libel in Illinois and other States. Moreover, the Supreme Court’s characterization of the words prohibited by the statute as those “liable to cause violence and disorder” paraphrases the traditional justification for punishing libels criminally, namely their “tendency to cause breach of the peace.” Libel of an individual was a common-law crime, and thus criminal in the colonies. Indeed, at common law, truth or good motives was no defense. In the first decades after the adoption of the Constitution, this was changed by judicial decision, statute or constitution in most States, but nowhere was there any suggestion that the crime of libel be abolished. Today, every American jurisdiction — the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico — punish libels directed at individuals. “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utter- anees are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U. S. 296, 309-310.” Such were" }, { "docid": "425094", "title": "", "text": "569, 62 S.Ct. at 768. The court held this language to be “fighting words,” stating there was no constitutional problem in punishing utterances, inter alia, of “the insulting or fighting words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 572, 62 S.Ct. at 769 (emphasis added). The Court stated that “[i]t has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id. We also find that Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), is instructive. When confronted with an appeal from a conviction of a man who had entered a courthouse wearing a jacket which read “F- the Draft,” the Supreme Court reversed. It held that the words on the jacket did not constitute fighting words. Rather fighting words were “those personally abusive epithets which, when addressed to the ordinary citizen, are as, a matter of common knowledge, inherently likely to provoke violent reaction.” Id. at 20, 91 S.Ct. at 1785 (emphasis added). The Court said that while the obscenity displayed in relation to the draft was not uncommonly “employed in a personally provocative fashion, in this instance it was clearly not ‘directed to the person of the hearer.’ ” Id. (quoting Cantwell, 310 U.S. at 309, 60 S.Ct. at 905). The Court noted that “words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.” Id. 403 U.S. at 26, 91 S.Ct. at 1788. Here the defendants have argued that the signs aroused violent feelings in some persons who viewed them. The fact that speech arouses some people" }, { "docid": "1704743", "title": "", "text": "all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include . “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution . . . .” Id. at 571-72, 62 S.Ct. at 769 (footnotes omitted). Another basis on which to conclude that plaintiffs’ proposed conduct falls outside the protection of the First Amendment is that under the circumstances it constitutes a pernicious form of group libel. In Beau-harnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952), the Court upheld a statute which is strikingly similar to those attacked here. The Court there declared: It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois legislature may warrantably believe that a man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech con-cededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individuals may be inextricably involved. Id. at 263, 72 S.Ct. at 733. Nor do we need" }, { "docid": "21379494", "title": "", "text": "‘fought for the white man in the war.’ ” Id. at 377. The prison authorities characterized the speech as a “demonstration” or “disturbance” that tends to breach the peace. As such, it is subject to punishment. The court agreed with this determination. It thereby curtailed speech which tended to incite, even though no actual breach of peace resulted. A more recent case , is McCloskey v. State of Maryland, 337 F.2d 72 (4th Cir. 1964). There the inmate wished to correspond with Maryland’s congressmen, senators, and state legislators ' to disseminate his anti-Semitic views. The court forbade the use of the mails for this purpose, holding: “A propagandist has no judicially enforceable right to propagandize within the prison walls, Iwhether his propaganda be directed to other inmates or to outsiders.” Id. át 74. Like thoughts were expressed by the Supreme Court in upholding a state statute under which a protesting street-corner “orator” was convicted. “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ ” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). In the instant case, I feel that Roberts has no judicially enforceable right to advocate open defiance of authority within the prison walls. The fact that so many inmates followed his request and" }, { "docid": "19964765", "title": "", "text": "to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (internal quotation marks and footnotes omitted) (quoting Cantwell v. Conn., 310 U.S. 296, 309-10, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)). While comparing the manager of a recreational center to a fascist dictator easily qualifies as “personal abuse” in a colloquial sense, as a matter of law it does not rise to the level of “so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). In Buckley v. Littell, we held that the use of the word “fascist” to describe a political commentator fell “within the realm of protected opinion and idea” and therefore was not actionable in a libel suit. 539 F.2d 882, 894 (2d Cir.1976). Indeed, comparing a disliked authority figure to a fascist leader is an exceedingly common — arguably hackneyed — rhetorical device. See, e.g., Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 792 (2d Cir.1997) (comparison between corporation’s business practices and “Mussolini’s Italy, Nazi Germany, and Communist. Romania”); NLRB v. New York Univ. Med. Ctr., 702 F.2d 284, 288 (2d Cir.1983) (description of a New York University Medical Center administrator as a fascist), vacated by 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 73 (1985); United States v. Silverman, 430 F.2d 106, 124 (2d Cir.1970) (comparison between union official and Adolf Hitler); United States v. Bollenbach, 125 F.2d 458, 459" }, { "docid": "425093", "title": "", "text": "discourtesy, no personal abuse. On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion. Although the contents of the record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner’s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question. 310 U.S. at 309-11, 60 S.Ct. at 905-06 (emphasis added). Two years later in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the Court upheld the conviction of a defendant who had called a police officer to his face “a God damned racketeer” and a “damned Fascist.” Id. at 569, 62 S.Ct. at 768. The court held this language to be “fighting words,” stating there was no constitutional problem in punishing utterances, inter alia, of “the insulting or fighting words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 572, 62 S.Ct. at 769 (emphasis added). The Court stated that “[i]t has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id. We also find that Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), is instructive. When confronted with an appeal from a conviction of a man who had entered a courthouse wearing a jacket which read “F- the Draft,” the Supreme Court reversed. It held that the words on the jacket did not constitute fighting words. Rather fighting words were" }, { "docid": "22759998", "title": "", "text": "International News Service v. Associated Press, 248 U. S. 215, 239 (1918). Surely Congress or the States may recognize a similar interest in the flag. But the Court insists that the Texas statute prohibiting the public burning of the American flag infringes on respondent Johnson’s freedom of expression. Such freedom, of course, is not absolute. See Schenck v. United States, 249 U. S. 47 (1919). In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), a unanimous Court said: “Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id., at 571-572 (footnotes omitted). The Court upheld Chaplinsky’s conviction under a state statute that made it unlawful to “address any offensive, derisive or annoying word to any person who is lawfully in any street or other public place.” Id., at 569. Chaplinsky had told a local marshal, “‘“You are a God damned racketeer” and a “damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.’”” Ibid. Here it may equally well be said that the public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. Johnson was free to make any verbal denunciation of the flag that he wished; indeed, he" }, { "docid": "19661997", "title": "", "text": "basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 20 (1971). Of course, the constitutional protection of speech is not without limits. Specifically not afforded protection are fighting words, “those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Barnes v. Wright, 449 F.3d 709, 717 (6th Cir.2006) (internal quotations and citations omitted). The First Amendment permits “restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” Thus, for example ... fighting words — “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction” — are generally pro-scribable under the First Amendment. Virginia v. Black, 538 U.S. 343, 358-59, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (citations omitted) (holding that the First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation and speech or symbolic acts to intimidate lack First Amendment protection). D Section 750.337 of Michigan Compiled Laws, regulating speech in the presence of women or children, was held unconstitutional by the Court of Appeals of Michigan in Boomer, 250 Mich.App. 534, 655 N.W.2d 255. Boomer reversed the conviction of a criminal defendant prosecuted under the law. The man, known to the local media as the cussing canoeist, was convicted for uttering a string of expletives in the presence of women and children upon tipping his canoe on the Rifle River. Id." }, { "docid": "22359706", "title": "", "text": "that the government may regulate certain categories of expression consistent with the Constitution. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem”). The First Amendment permits “restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” R. A. V. v. City of St. Paul, supra, at 382-383 (quoting Chaplinsky v. New Hampshire, supra, at 572). Thus, for example, a State may punish those words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, supra, at 572; see also R. A. V. v. City of St. Paul, supra, at 383 (listing limited areas where the First Amendment permits restrictions on the content of speech). We have consequently held that fighting words — “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction” — are generally proscribable under the First Amendment. Cohen v. California, 403 U. S. 15, 20 (1971); see also Chaplinsky v. New Hampshire, supra, at 572. Furthermore, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam). And the First Amendment also permits a State to ban a “true threat.” Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (internal quotation marks omitted); accord, R. A. V. v. City of St. Paul, supra, at 388 (“[T]hreats of violence are outside the First Amendment”); Madsen v. Women’s" }, { "docid": "3113017", "title": "", "text": "its officials. 2. The As-Applied Challenge: Content-Based Regulation of Speech Even assuming the applicable permitting regulation did not give government officials unfettered discretion and in fact set forth neutral standards for determining which permit applications should be granted and which should not, the City could not deny a permit on the basis of the content of protected speech. The First Amendment generally prevents the government from proscribing speech because of disapproval of the ideas expressed, R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), and, indeed, “[c]ontent-based regulations are presumptively invalid.” Id. (quoting Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991)). Freedom of speech, however, has never been interpreted “to give absolute protection to every individual to speak whenever or wherever he [or she] pleases or to use any form of address in any circumstances that he [or she] chooses.” Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Indeed, “[f]rom 1791 to the present, ... our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” R.A.V., 505 U.S. at 382-83, 112 S.Ct. 2538 (quoting Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766). One such permissible restriction on speech is the proscription on so-called “fighting words.” See Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766. The Supreme Court has defined “fighting words” as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. The Supreme Court has consistently held that government may proscribe speech that is directed towards inciting or producing lawless action, and is likely to incite or result in" }, { "docid": "22379721", "title": "", "text": "law as applied that we review, not the abstract, academic questions which it might raise in some more doubtful case.” Saia v. New York, 334 U. S. 558, 571 (1948) (dissenting opinion). Overbreadth and vagueness in the field of speech, as the present case and Gooding indicate, have become result-oriented rubberstamps attuned to the easy and imagined self-assurance that “one man’s vulgarity is another’s lyric.” Cohen v. California, 403 U. S. 15, 25 (1971). The danger is apparent. Inherent in the use of these doctrines and this standard is a judicial-legislative confrontation. The more frequent our intervention, which of late has been unrestrained, the more we usurp the prerogative of democratic government. Instead of applying constitutional limitations, we do become a “council of revision.” If the Court adheres to its present course, no state statute or city ordinance will be acceptable unless it parrots the wording of our opinions. This surely is not what the Framers intended and this is not our constitutional function. I would adhere to what Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench in Chaplinsky, 315 U. S., at 571-572: “Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion" }, { "docid": "22379722", "title": "", "text": "of First Amendment freedoms, wrote for a unanimous bench in Chaplinsky, 315 U. S., at 571-572: “Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U. S. 296, 309-310.” (Footnotes omitted.) The speech uttered by Mrs. Lewis to the arresting officer “plainly” was profane, “plainly” it was insulting, and “plainly” it was fighting. It therefore is within the reach of the ordinance, as narrowed by Louisiana's highest court. The ordinance, moreover, poses no significant threat to protected speech. And it reflects a legitimate community interest in the harmonious administration of its laws. Police officers in this day perhaps must be thick skinned and prepared for abuse, but a wanton, high-velocity, verbal attack often is but a step away from violence or passioned reaction, no matter how self-disciplined the individuals involved. In the interest of the arrested person who could become the victim of police overbearance, and in the interest of the officer, who must anticipate violence and who, like the rest of us, is fallibly human, legislatures have enacted laws of the kind challenged in this case to" }, { "docid": "22537282", "title": "", "text": "the incident could be viewed as religious in character, and therefore entitled to the protection of the Fourteenth Amendment, they would not cloak him with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute. We turn, therefore, to an examination of the statute itself. Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” Cantwell v. Connecticut, 310 U. S. 296, 309-310. The state statute here challenged comes to us authoritatively construed by the highest court of New Hampshire. It has two provisions — the first relates to words or names addressed to another in a public place; the second refers to noises and exclamations. The court said: “The two provisions are distinct. One may stand separately from the other. Assuming, without holding, that the second were unconstitutional, the first could stand if constitutional.” We accept that construction of severability and limit our consideration to the first provision of the statute. On the authority of its earlier decisions, the state court declared that the statute’s purpose was to preserve the public peace, no words being “forbidden" }, { "docid": "22421687", "title": "", "text": "414 A.2d 54, 58 (1980) (“disorderly conduct statute may not be used to punish anyone exercising a protected First Amendment right”). Speech that does not receive First Amendment protection, in turn, “include[s] the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words[.]” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Under the first step of the qualified immunity analysis, the issue is whether Davis’ conduct violated Gilíes’ First Amendment rights. The District Court held Gilíes’ speech constituted “fighting words,” “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Mem. Op. at *13-15 (W.D.Pa. Apr. 22, 2004) (quoting Chaplinsky, 315 U.S. at 571-72, 62 S.Ct. 766); see also Texas v. Johnson, 491 U.S. 397, 409, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (“To be punishable, words must do more than bother the listener; they must be nothing less than an invitation to exchange fisticuffs.”) (quoting Chaplinsky, 315 U.S. at 572-73, 62 S.Ct. 766). Put another way, fighting words are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” Texas v. Johnson, 491 U.S. at 409, 109 S.Ct. 2533 (quoting Chaplinsky, 315 U.S. at 574, 62 S.Ct. 766). We believe that much of Gilíes’ speech was protected under the First Amendment. Crucial to this determination is that we view the facts in the light most favorable to Gilíes (the non-moving party) under the summary judgment standard and the first prong of the qualified immunity analysis. Of Gilíes’ questionable speech, some was derogatory language generieally directed to the crowd (e.g., “by definition, there are thousands of fornicators on this campus,” “drunkards are everywhere on this campus”). This type of language, when not personally directed at a particular member of the audience, is not likely to incite an immediate breach of the peace. See Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (noting that fighting words are “personally abusive epithets ... directed to the person of the hearer”) (internal quotations omitted)." }, { "docid": "19964764", "title": "", "text": "the speech. If the answer is yes, then the possibility of a First Amendment claim arises.” (citations omitted)). Because Williams was not a public employee when he criticized Bland, his speech need not have been on a matter of public concern for it to fall within the protection of the First Amendment for the purposes of this action. Turning to the question of whether the First Amendment protects Williams’s statements condemning Bland as, inter alia, a “Junior Mussolini” engaged in “intimidation tactics,” we conclude that those statements, while perhaps coarse, fall within the ambit of protected speech. We come to this conclusion recognizing fully that the right to free speech is not absolute. As the Supreme Court explained in Chaplinsky v. New Hampshire: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (internal quotation marks and footnotes omitted) (quoting Cantwell v. Conn., 310 U.S. 296, 309-10, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)). While comparing the manager of a recreational center to a fascist dictator easily qualifies as “personal abuse” in a colloquial sense, as a matter of law it does not rise to the level of “so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a" }, { "docid": "1704742", "title": "", "text": "No speeches were to be made. Plaintiffs’ handbills had been distributed in the Village and a number of Skokie residents with Jewish surnames had received “offensive and threatening telephone calls.” The portent of this action and the proposed march could not be lost on anyone familiar with the methods of Hitler’s Nazis in Germany. Under these circumstances, the appearance of plaintiffs’ group in Skokie may be so extremely offensive, and of such little social utility as to be beyond the protection of the First Amendment. In this sense the present case does not differ greatly from Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), where the Court upheld the conviction of a Jehovah’s Witness for calling complainant a “God damned racketeer” and “a damned fascist.” The analysis the Court used there applies with equal force here to the activities proposed by plaintiffs: Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include . “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution . . . .” Id. at 571-72, 62 S.Ct. at 769 (footnotes omitted). Another basis on which to conclude that plaintiffs’ proposed conduct falls outside the protection of the First Amendment is that under the circumstances it constitutes a pernicious form of group libel. In Beau-harnais v. Illinois, 343 U.S." }, { "docid": "22754259", "title": "", "text": "unexpressed but more stringent test, the action of the State would have to be sustained. Only recently this Court held that a state could punish as a breach of the peace use of epithets such as “damned racketeer” and “damned fascist,,” addressed-to only one person, an official, because likely to provoke the average person to retaliation. - But these are mild in comparison to the epithets “slimy scum,” “snakes,” “bedbugs,” and the like, which Terininiello hurled at an already inflamed mob of his adversaries. Mr. Justice Murphy, writing for a unanimous Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572, said: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to . incite an immediate breach of the peace. It has been /veil observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and ids punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U. S. 296, 309-310.”' In the latter case Mr. Justice Roberts for a unanimous Court also said: “The offense known as breach of the peace em-. braces a great variety of conduct destroying or men-, acing public order and tranquility. It includes not only violent acts but acts and words likely to pro-, duce violence in others. No one woujd have the hardihood to suggest that the principle of freedom of speech sanctions., incitement to riot or that religious liberty connotes .the privilege to elxhort others to physical attack, upon those belonging to another sect. When clear and" }, { "docid": "22335984", "title": "", "text": "They threaten breaches of the peace and ultimate revolution. * * * The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has en-kindled the flame or blazed into the conflagration,” Ibid. As was said in Chaplinsky . v. New Hampshire, 315 U.S. 568, 571, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” I would but add to what was said in the Gitlow case that the utterances prohibited by the Act there construed and by the Smith* Act are, like those just referred to, “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” 315 U.S. 572, 62 S.Ct. at page 769, 86 L.Ed. 1031. The benefit, if any, to be derived from language advocating action to overthrow is even more “clearly outweighed” by the interest in our national security and in- the preservation of our hard-earned liberties and our republican form of government which protects them not only in theory but- in fact. At least it is for the legislature, here the Congress, so to determine, once it reasonabty finds that such advocacy presents such danger to the government. That Congress could reasonably have" }, { "docid": "22088893", "title": "", "text": "jurisdiction — the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico — punish libels directed at individuals. “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utter- anees are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U. S. 296, 309-310.” Such were the views of a unanimous Court in Chaplinsky v. New Hampshire, supra, at 571-572. No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana. The precise question before us, then, is whether the protection of “liberty” in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels — as criminal libel has been defined, limited and constitutionally recognized time out of mind — directed at designated collectivities and flagrantly disseminated. There is even authority, however dubious, that such utterances were also crimes at common law. It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary criminal libel statutes. We cannot say, however, that the question is concluded by history and practice. But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this is" }, { "docid": "21379495", "title": "", "text": "raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ ” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). In the instant case, I feel that Roberts has no judicially enforceable right to advocate open defiance of authority within the prison walls. The fact that so many inmates followed his request and demonstrated does not indicate, contrary to what Roberts would have the court believe, that his complaints are meritorious. It is more likely that Roberts appealed to those prisoners seeking the slightest pretext for demonstrating against their confinement. If the grievances are just, the courts will, as has been seen, furnish redress. But Supreme Court statements to the effect that there is no absolute right to freedom of speech means that attempts to speak in a milieu where such speech may incite an insurrection against the authorities must be tempered. Prison authorities cannot be expected to permit such conditions in the name of free speech. In a prison environment, where the climate tends to be more volatile than on the streets, strong restraints and heavy penalties are in order. PUNISHMENT Punishment of prisoners, like other facets of prison administration, is ordinarily not subject to review by federal courts. This reluctance extends to complaints of severity of solitary confinement brought under the Civil Rights Act. United States ex rel. Knight v. Ragen, 337 F.2d 425 (7th Cir." } ]

[ { "docid": "23675755", "title": "", "text": "question and prior law allegedly establishing that the defendant’s actions were clearly prohibited. The “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). While Anderson makes clear that there is no requirement that the specific action in question have previously been held unlawful, the plaintiff must show that the unlawfulness of the conduct in question is “apparent” in light of preexisting law. Id. If the plaintiff fails to meet the burden of showing how a defendant violated a clearly established right, we must prevent the plaintiff from subjecting government officials to trial: [qualified immunity is an] entitlement not to stand trial or face the burdens of litigation_ The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis in original). If the plaintiff fulfills the burden of showing how the defendant violated a clearly established right, the defendant then bears the normal burden of a movant for summary judgment of demonstrating that no material facts remain in dispute. See Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989). III. With these considerations in mind, we examine Hannula’s claim that Lively violated her clearly established constitutional right to be free from the excessive use of police force in making an arrest. Both Lively and Hannula state that the contours of the right to be free from excessive force are outlined in Graham v. Connor, — U.S. -, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), which holds that a claim of excessive police force should be analyzed under the fourth amendment’s objective reasonableness standard rather than under a substantive due process standard, see id. at 1871. While Graham sets forth the test for determining whether excessive force has occurred, it does not necessarily state the proper" } ]

[ { "docid": "23168406", "title": "", "text": "liability for actions taken pursuant to their discretionary authority. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Court established the test for courts to use in determining whether an official can claim qualified immunity: “[G]overnment officials ... generally are shielded [by the doctrine of qualified immunity] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The right must be sufficiently clear that “in light of preexisting law the unlawfulness [of the official’s conduct] must be apparent.” Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Plaintiffs have the burden of showing that the officials violated such clearly established statutory or constitutional rights. See Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983) (per curiam). Courts evaluate an official’s conduct under an objective, reasonable person standard. Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986) (standard is what reasonable officer would have believed); Clark v. Evans, 840 F.2d 876, 881 (11th Cir.1988) (Harlow test objective: whether under the circumstances a reasonable person would have believed actions to be lawful). Qualified immunity is available to government officials “as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson, 107 S.Ct. at 3038. The purpose of these requirements is to ensure that the official is or should be aware of the rights he or she may be violating. Id. at 3039 (“The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”). The doctrine is intended to balance society’s interest in providing a remedy for injured victims and discouraging unlawful conduct against the interest in enabling public officials to act independently and without fear of consequences. Harlow, 457 U.S. at 819, 102 S.Ct. at 2739-40. Plaintiffs allege that the defendants violated Waldrop’s Eighth Amendment rights. The Supreme Court has held that deliberate indifference by" }, { "docid": "6349442", "title": "", "text": "of qualified immunity The standard for qualified immunity is that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Bills v. Dahm, 32 F.3d 333, 334 (8th Cir.1994); Latimore v. Widseth, 7 F.3d 709, 712 (8th Cir.1993) (en banc) (quoting Jackson v. Rapps, 947 F.2d 332, 338 (8th Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992), cert. denied, — U.S. -, 114 S.Ct. 1124, 127 L.Ed.2d 433 (1994)); Givens v. Jones, 900 F.2d 1229, 1231-32 (8th Cir.1990) (quoting Harlow). “[T]o be clearly established, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Bills, 32 F.3d at 335; Latimore, 7 F.3d at 712; Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir.1989); See also Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). The shield of qualified immunity is breached if “the unlawfulness of the action [is] apparent in light of pre-existing law.” Bills, 32 F.3d at 334-35. However, the Supreme Court has made clear that a plaintiff cannot defeat an official’s claim of qualified immunity “‘simply by alleging violation of extremely abstract rights.’ ” Bills, 32 F.3d at 335 (quoting Anderson, 483 U.S. at 639, 107 S.Ct. at 3038); Givens, 900 F.2d at 1232 (quoting Anderson, 483 U.S. at 639,107 S.Ct. at 3038). Otherwise, “[plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging a violation of extremely abstract rights.” Anderson, 483 U.S. at 639, 107 S.Ct. at 3039; Latimore, 7 F.3d at 712. Case law dealing with qualified immunity reflects a conflict of competing interests. Harlow, 457 U.S. at 819, 102 S.Ct. at 2738; Anderson, 483 U.S. at 638, 107 S.Ct. at 3038; Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct." }, { "docid": "7933825", "title": "", "text": "whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Id. at 526, 105 S.Ct. at 2815. Whether an official “may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (citations omitted). For a law to be “clearly established” in the context of qualified immunity, [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent. Id. at 640, 107 S.Ct. at 3039 (citations omitted). As the court made clear in Harlow, the appropriateness of qualified immunity represents a “threshold” legal question for the district court. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The trial court need not deny a defendant the right to qualified immunity simply because a complaint adequately alleges violation of clearly established law. Rather, a plaintiff must allege sufficient facts “to create a genuine issue as to whether the defendant in fact committed those acts.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. Since qualified immunity is an affirmative defense that must be pleaded by the defendant official, Harlow, 457 U.S. at 815, 102 S.Ct. at 2736, the plaintiff need not fully anticipate the defense in the complaint. Poe v. Haydon, 853 F.2d 418, 424 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989). It follows, then, that when a qualified immunity challenge is made to" }, { "docid": "19210032", "title": "", "text": "judgment to Pulaski County, the Pulaski County Sheriffs Department, and Sheriff Ward-Tillett in her official capacity because of Sivard’s failure to establish a municipal policy or custom. E. Qualified Immunity of Sheriff Ward-Tillett An analysis of qualified immunity is appropriate only after resolution of the purely legal question of whether Sivard has alleged a violation of a constitutional right. Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). The issue was definitively resolved in Sivard I, where we held that Sivard’s claim of wrongful detention was legally sufficient to allege a violation of the Fourth Amendment, as incorporated by the Due Process Clause of the Fourteenth Amendment, by the defendants under 42 U.S.C. § 1983. Sivard I, 959 F.2d at 669. Qualified immunity is an affirmative defense which must be pleaded by a defendant official. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). In Harlow, the Supreme Court held that “government officials, performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The contours of a “clearly established” right “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). ' The level of generality at which the relevant legal rule is to be identified may not be so abstract that the rule of qualified immunity is converted into a rule of virtually unqualified liability. Id. at 639, 107 S.Ct. at 3038. The “very action in question” need not have previously been held unlawful, but, in the light of pre-existing law, the unlawfulness of the action must be apparent. Id. at 640, 107 S.Ct. at 3039. A prior case that is “precisely on all fours on the facts and law involved here” is not required. McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir.1992) (quoting Landstrom v. Illinois Dep’t of Children & Family" }, { "docid": "10068606", "title": "", "text": "unreasonable.” Johnson v. Morel, 876 F.2d 477, 480 (5th Cir.1989) (en banc) (per curiam) (footnote omitted). When a defendant raises the defense of qualified immunity, however, we must determine whether the defendant’s conduct was qualifiedly immune before reaching the merits of the section 1983 claim. Britt argues, and the district court agreed, that his conduct was qualifiedly immune. At the time of the incident, Britt was a public safety official. As such, he is entitled to assert the defense of qualified immunity. See Gagne v. City of Galveston, 805 F.2d 558, 559 (5th Cir.1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987). Substantively, qualified immunity shields government officials performing discretionary functions “from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Whether a defendant asserting qualified immunity may be personally liable turns on the objective legal reasonableness of the defendant’s actions assessed in light of clearly established law. See id. at 639, 107 S.Ct. at 3038. When a plaintiff invokes a clearly established right such as freedom from excessive force, the appropriate inquiry is whether “[t]he contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates the right.” Id. at 640, 107 S.Ct. at 3039. The objective reasonableness of an official’s conduct must be measured with reference to the law as it existed at the time of the conduct in question. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The conduct in question occurred in 1987. At that time, the standards set forth in Shillingford v. Holmes, 634 F.2d 263 (5th Cir. Unit A Jan. 1981) were clearly established law in this circuit. In Shillingford, we held that to maintain an excessive force claim a plaintiff must prove that the defendant’s action “caused severe injuries, was grossly disproportionate to the need for action under the circumstances and was inspired by" }, { "docid": "21566793", "title": "", "text": "97 L.Ed.2d 523 (1987). To hold the child protective services workers personally liable here, Stem must pierce the qualified immunity that they inherently enjoy by demonstrating that the workers breached “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). That is, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. Further, the applicable law that binds the conduct of officeholders must be clearly established at the very moment that the allegedly actionable conduct was taken. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Anderson, 483 U.S. at 639, 107 S.Ct. at 3038. For purposes of summary judgment, courts are not at liberty to view the applicable law with the advantage of hindsight. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. We have recently encountered a case factually similar to the instant dispute. In Hodorowski v. Ray, 844 F.2d 1210 (5th Cir.1988), aggrieved parents brought a section 1983 action against Texas child protective services workers who temporarily removed the plaintiffs’ children from the family home without a court order. We held that child protective services workers are entitled to, minimally, qualified immunity to ensure that an effective child-abuse investigation system exists. Id. at 1216. We rejected the TDHS workers’ claim of entitlement to absolute immunity, however, for fear of immunizing intentional violations of clearly established law. See id. at 1212-13. To survive a motion for summary judgment against a likely defense of qualified immunity, “the plaintiff’s complaint [must] state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of immunity.” Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir.1985). In this case, Stem makes various conclusory allegations to the effect that he was deprived of due process of law, equal protection under the law, the rights secured by the privileges and immunities clause" }, { "docid": "21545106", "title": "", "text": "see also Serpas v. Schmidt, 827 F.2d 23, 29 (7th Cir.1987) (“To satisfy the ‘certainty and regularity’ requirement, an ‘inspection program must define clearly what is to be searched, who can be searched, and the frequency of such searches.’ ” (quoting Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072, 1078 (7th Cir.1983)), cert. denied, 485 U.S. 904, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988). Because the Act does not provide a constitutionally adequate substitute for a warrant, Gerber’s warrantless search violated V-l’s Fourth Amendment rights. C. Whether Gerber Was Qualiftedly Immune From Suit Government officials performing discretionary functions have a qualified immunity from suit. “[Wjhether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 639, 640, 107 S.Ct. 3034, 3038, 3039, 97 L.Ed.2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 819, 102 S.Ct. 2727, 2738, 2739, 73 L.Ed.2d 396 (1982)) (citations omitted). “Once a defendant raises the defense of qualified immunity as a defense to an action, ‘[t]he plaintiff carries the burden of convincing the court that the law was clearly established.’ ” Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989) (quoting Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988)). “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew" }, { "docid": "10779365", "title": "", "text": "immunity. “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity protects defendants not only from liability but also from suit. Id. Once the defendant raises the defense of qualified immunity, “the plaintiff then has the burden to show with particularity facts and law establishing the inference that the defendants violated a constitutional right.” Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir.1994). “This burden is quite heavy ... for the plaintiff must do more than simply allege the violation of a general legal precept. The plaintiff must ‘instead demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant’s actions were clearly prohibited.’” Jantz v. Muci 976 F.2d 623, 627 (10th Cir.1992) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Only if plaintiff makes that threshold showing does the burden shift to defendants to show that no material facts remain in dispute that would defeat defendant’s claim of qualified immunity. Id. The district court found that “plaintiffs general claims of being denied property and liberty interests without due process are insufficient to satisfy her shifted burden of establishing that defendants’ alleged actions violated clearly established law at the time of her being placed on administrative leave without pay.” App. 17. “To assess whether an individual was denied procedural due process, ‘courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.’ ”" }, { "docid": "22261499", "title": "", "text": "their Fourth Amendment right to be free from unreasonable searches and seizures as well as their Fourteenth Amendment right to equal protection of the laws. The affirmative defense of qualified, or good faith, immunity shields “government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or con stitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). An official may, however, be held personally liable for civil damages for unlawful official action if that action was not objectively reasonable in light of the legal rules that were “clearly established” at the time it was taken. See Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). This “objective legal reasonableness” standard analyzes claims of immunity on a fact-specific, case-by-case basis to determine whether a reasonable official in the defendant’s position could have believed that his conduct was lawful, judged from the perspective of the reasonable official on the scene. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). When determining whether a right is “clearly established,” this Court must look “first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits.” Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir.1991). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). However, “[t]his not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id. (citations omitted). Where a defendant moves for summary judgment based on qualified immunity, the plaintiff must first identify a clearly established right alleged to have been violated and second, establish" }, { "docid": "8571932", "title": "", "text": "which a reasonable trier of fact could find a violation of plaintiff’s constitutional rights, and the court now holds that, if these allegations are found to be true, the acts of the individual defendants were such that no reasonable official could have believed those actions to have been constitutionally or legally sound.” We affirm the district court’s judgment in regard to Thompson’s first amendment claim. “[WJhether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action ... assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.... ” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982)). Thus, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (“It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”); Elliott v. Perez, 751 F.2d 1472, 1477 n. 13 (5th Cir.1985) (“Under the qualified immunity standard, government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). The inquiry in the instant case then turns on whether, assuming Thompson’s allegations to be true, Raines, Sisk and Lindley violated rights of Thompson that were clearly established at the time of their actions. That is, whether the individual defendants would reasonably have" }, { "docid": "7008450", "title": "", "text": "order granting the officers qualified immunity and dismissing her claim. 1. “[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action ... assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 635, 107 S.Ct. 3034, 3036, 97 L.Ed.2d 523 (1987) (quoting Harlow, 457 U.S. at 819, 102 S.Ct. at 2738). In 1992 we recognized that “the general right to be free from seizure unless probable cause exists was clearly established in the mental health seizure context.” See Gooden v. Howard County, 954 F.2d 960, 968 (4th Cir.1992) (en banc) (emphasis added). Moreover, it was arguably clearly established that an officer must have probable cause to believe that the individual posed a danger to herself or others before involuntarily detaining the individual. See id. We have held, however, that “ ‘if the test of “clearly established law” were to be applied at this level of generality, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability.’ ” Id. (quoting Anderson, 483 U.S. at 639, 107 S.Ct. at 3039) (alterations in original omitted). Thus, to defeat a qualified immunity defense, Peller must show that the right allegedly violated was “clearly established” in more than just a general sense. She must demonstrate that the particular actions of these police officers were unlawful under the law established at the time of the incident. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039; see also Cullinan v. Abramson, 128 F.3d 301, 310 (6th Cir.1997) (holding that “[i]t is not determinative ... that the plaintiff has asserted the violation of a broadly stated general right” (citation omitted)). To be clearly established for purposes of qualified immunity, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. “[T]he basic purpose of qualified immunity ..." }, { "docid": "3012547", "title": "", "text": "102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). “[Wjhether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action.... assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (citing Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39); Yates v. City of Cleveland, 941 F.2d 444, 446 (6th Cir.1991). “A necessary concomitant to the determination of whether the constitutional right asserted by-a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). In ruling on a summary judgment motion, a district court will consider the allegations put forth by the plaintiff, and “[ujnless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. The United States Supreme Court has elaborated on what is meant by “clearly established,” [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (citations omitted). The ultimate burden of proof is on the plaintiff to show that the defendants are not entitled to qualified immunity. Wegener v. Covington, 933 F.2d 390, 392 (6th Cir.1991). Defendants bear the initial burden of coming forward with facts to suggest that they were acting within the scope of their discretionary" }, { "docid": "1387952", "title": "", "text": "denial of a qualified immunity defense.” Tribble v. Gardner, 860 F.2d 321, 323 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1988). “Government officials performing discretionary functions enjoy qualified immunity from civil damages so long as their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th Cir.1989) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)); see also Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). The parties agree that the plaintiffs have the burden to prove that the right which the defendants allegedly violated was clearly established at the time of the alleged misconduct. See also Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139 (1984). The parties disagree about the level of “generality at which the relevant ‘legal rule' is to be identified.” Anderson, 483 U.S. at 639, 107 S.Ct. at 3039. This disagreement highlights a difficult aspect of the qualified immunity doctrine. In Anderson, the Court explained that: The operation of this [“clearly established”] standard ... depends substantially on the level of generality at which the relevant “legal rule” is to be identified. ... [O]ur cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3039-40 (citations omitted). We have said that “the Court [in Anderson ] held that the right [allegedly infringed by the defendant] referenced by the Harlow test is not a" }, { "docid": "14216774", "title": "", "text": "immunity. The district court agreed and granted the motion for summary judgment. Houghton now appeals for the third time. II Government officials performing discretionary functions may enjoy qualified immunity from section 1983 liability for actions performed in the course of their official duties, “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (Harlow). We first review the district court’s order holding South entitled to qualified immunity with respect to Houghton’s due process claim. “[T]he appealable issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law.” Mitchell v. Forsyth, 472 U.S. 511, 528 n. 9, 105 S.Ct. 2806, 2816 n. 9, 86 L.Ed.2d 411 (1985). A right is “clearly established” when “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) {Anderson). This requires more than an alleged “violation of extremely abstract rights.” Id. at 639, 107 S.Ct. at 3039. The official’s action, however, need not previously be held unlawful. Id. at 640, 107 S.Ct. at 3039. Rather, the unlawfulness must be apparent in light of preexisting law. Id. “[T]he proper fact-specific inquiry under Anderson is not whether the law is settled, but whether, in light of clearly established law and the information available to him, a reasonable person in [South’s] position could have objectively believed his actions to be proper.” Floyd v. Laws, 929 F.2d 1390, 1394 (9th Cir.1991), citing Anderson, 483 U.S. at 641, 107 S.Ct. at 3039. Houghton bears the initial burden of proving that the rights allegedly violated by South were clearly established at the time of the alleged misconduct. Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir.1989). South" }, { "docid": "2005831", "title": "", "text": "known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “The doctrine of qualified immunity shields a police officer from liability for civil damages when a reasonable officer could have believed that the challenged conduct did not violate clearly established statutory or constitutional rights.” Husband v. Bryan, 946 F.2d 27, 30 (5th Cir.1991) (quoting Simpson v. Hines, 903 F.2d 400, 402 (5th Cir.1990)); see Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir.1990). Qualified immunity is available to state officials sued for constitutional violations pursuant to 42 U.S.C. § 1983. See Harlow, 457 U.S. at 818 n. 30, 102 S.Ct. at 2738 n. 30 (citing Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978)). Whether a government official is entitled to qualified immunity “generally turns on the ‘objective reasonableness of the action’ assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Texas Faculty Ass’n v. University of Texas at Dallas, 946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)). The law is deemed to be clearly established if the contours of a right asserted are sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. at 389-90. The standard is formulated at this level of generality in order to afford the measure of protection that the doctrine is intended to confer. See Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3039. Therefore, “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence, more relevant sense.” Id. at 640, 107 S.Ct. at 3039. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right.” Id. If reasonable public officials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified immunity. Pfannstiel v. City of Manon, 918 F.2d 1178, 1183 (5th Cir.1990). Whether the conduct" }, { "docid": "21575978", "title": "", "text": "insofar as their conduct does not violate clearly established rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).... Qualified immunity is available to state officials sued for constitutional violations pursuant to 42 U.S.C. § 1983. See Harlow, 457 U.S. at 818 n. 30, 102 S.Ct. at 2738 n. 30 (citing Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978)). Whether a government official is entitled to qualified immunity “generally turns on the ‘objective reasonableness of the action’ assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Texas Faculty Ass’n v. University of Texas at Dallas, 946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)). The law is deemed to be clearly established if the contours of a right asserted are sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. at 389-90. The standard is formulated at this level of generality in order to afford the measure of protection that the doctrine is intended to confer. See Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3039. Therefore, “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence, more relevant sense.” Id. at 640, 107 S.Ct. at 3039. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right.” Id. If reasonable public officials could differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified immunity. Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990). Whether the conduct of which the plaintiff complains violated clearly established law is an essentially legal question. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985); Pfannstiel, 918 F.2d at 1183. White v. Taylor, 959 F.2d 539, 544 (5th Cir.1992) (emphasis added). Methodology" }, { "docid": "2997108", "title": "", "text": "defendants’ actions? If this Court finds in answer to the second inquiry that the State Defendants were entitled to qualified immunity, then, whatever the answers to the first and third inquiries, our inquiry ends, because the district court has addressed the first inquiry, finding that the State Defendants’ consideration of political affiliation in hiring temporary highway maintainers was unconstitutional, and its finding is not challenged on appeal. Similarly, if the State Defendants are entitled to qualified immunity, the third inquiry becomes irrelevant because seeking damages against them is prohibited, even if the plaintiff suffered an injury by virtue of the State Defendants’ actions. Qualified immunity shields government officials who are performing discretionary functions from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396. Whether .the State Defendants will be protected by qualified immunity “turns on the ‘objective legal reasonableness’ of the action, Harlow, 457 U.S., at 819[102 S.Ct at 2739], assessed in light of the legal rules that were ‘clearly established’ at the time it was taken, id., at 818[102 S.Ct at 2738].” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523. As the Court stated in Anderson: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ...; but it is to say that in the light of pre existing law the unlawfulness must be apparent. Id. at 640, 107 S.Ct at 3039 (citations omitted). This Court has stated several times that a plaintiff may show that a legal rule was “clearly established” by either providing a “closely analogous” case covering both the right at issue and its application to the facts of the case at hand or showing that a reasonable person would have known" }, { "docid": "9617625", "title": "", "text": "known gang members. The only issue before us is whether Widseth is entitled to qualified immunity on Latimore’s claim. The availability of the defense to an official exercising discretionary authority in a particular case requires careful consideration of the established law at the time, the state actor’s objective knowledge of that law, and the complained-of conduct. “Qualified immunity protects a government official from suit if, at the time of the challenged acts, it was not clearly established that those actions would violate clearly established law of which a reasonable person would have known.” Jackson v. Rapps, 947 F.2d 332, 338 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992). Immunity will be appropriate if the § 1983 plaintiff does not allege violation of a clearly established constitutional right in the first instance. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The mere assertion of such a right, however, will not be adequate: “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Thus the defense still may be viable, even in the face of a clearly established (and violated) constitutional right, if the defendant can demonstrate “the ‘objective legal reasonableness’ of the action assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (citations omitted) (quoting Harlow, 457 U.S. at 819, 818, 102 S.Ct. at 2739, 2738). The constitutional right invoked here, and well established in the law, is Latimore’s Eighth Amendment right to be free from cruel and unusual punishment, specifically, “to be protected from harm by fellow inmates.” Smith v. Marcantonio, 910 F.2d 500, 501 (8th Cir.1990). The “well established” nature of the right asserted does not short-circuit our inquiry. Latimore cannot assert a broad constitutional right, and violations thereof, and survive a motion for summary judgment on qualified immunity grounds simply" }, { "docid": "8390899", "title": "", "text": "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” More recently, in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Court refined the appropriate qualified immunity inquiry in a civil rights action against a law enforcement officer involved in a warrantless premises search. The contours of the right [allegedly violated] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Id. at 640, 107 S.Ct. at 3039 (citation omitted). Thus, appellate assessment of a qualified immunity claim is apportioned into two analytic components. First, if the right asserted by the plaintiff was “clearly established” at the time of its alleged violation, we are required to assume that the right was recognized by the defendant offi cial, see Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Rodriguez v. Comas, 888 F.2d 899, 901 (1st Cir.1989); second, we will deny the immunity claim if a reasonable official situated in the same circumstances should have understood that the challenged conduct violated that established right, see Anderson, 483 U.S. at 640-41, 107 S.Ct. at 3039; Rodriguez, 888 F.2d at 901. Clearly Established Law At the time of the constitutional violation asserted in the present case, clearly established fourth amendment law entitled Burns to be free from any unreasonable search of her person. Blackburn v. Snow, 771 F.2d 556, 569 (1st Cir.1985) (“It can hardly be debated that ..., in 1977, [there was] a ‘clearly established’ Fourth Amendment right to be free of unreasonable [strip] searches.”). Then, as now, however, a warrantless search was permissible, in exigent circumstances, where there was probable cause to believe that evidence would be found, United States v. Moore, 790 F.2d 13, 15 (1st" }, { "docid": "11379395", "title": "", "text": "202 (1986)). “On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). We examine first the threshold question of whether Tadloek is entitled to the defense of qualified immunity. See Korb v. Lehman, 919 F.2d 243, 246 (4th Cir.1990). “Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; accord Pinder v. Johnson, 54 F.3d 1169, 1173 (4th Cir.1995) (en banc). The right must be established in more than a general way: “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). At bottom, “[t]he central question in determining the issue of qualified immunity is whether or not the conduct of the government official violated ‘clearly established law,’ i.e., the ‘ “objective legal reasonableness” of [his] action ... assessed in light of the legal rules that were “clearly established” at the time it was taken_’” Korb, 919 F.2d at 246 (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987)). The right implicated in this case is the Eighth Amendment right to be free from violence at the hands of other inmates. Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984) (noting that prison officials must “take reasonable measures to guarantee the safety of the inmates”). The United States Supreme Court recently elaborated on the parameters of this right in Farmer v. Brennan, — U.S. -,-, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994), in which the Court held that “ ‘prison officials have a duty ... to protect prisoners from violence at the hands" } ]

[ { "docid": "22708308", "title": "", "text": "the ground that mandamus was not an appropriate remedy. “The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction . . . ,” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26. It is, of course, well settled, that the writ is not to be used as a substitute for appeal, Ex parte Fahey, 332 U. S. 258, 259-260, even though hardship may result from delay and perhaps unnecessary trial, Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 382-383; United States Alkali Export Assn. v. United States, 325 U. S. 196, 202-203; Roche v. Evaporated Milk Assn., supra, at 31. The writ is appropriately issued, however, when there is “usurpation of judicial power” or a clear abuse of discretion, Bankers Life & Casualty Co. v. Holland, supra, at 383. Here petitioner’s basic allegation was lack of power in a district court to order a mental and physical examination of a defendant. That this issue was substantial is underscored by the fact that the challenged order requiring examination of á defendant appears to be the first of its kind in any reported decision in the federal courts under Rule 35, and we have found only one such modern case in the state courts. The Court of Appeals recognized that it had the power to review on a petition for mandamus the basic, undecided question of whether a district court could order the mental or physical examination of a defendant. We agree that, under these unusual circumstances and in light of the authorities, the Court of Appeals had such power. The petitioner, however, also alleged that, even if Rule 35 gives a district court power to order mental and physical examinations of a defendant in an appropriate case, the District Court here exceeded that power in ordering examinations when petitioner’s mental and physical condition was not “in controversy” and no “good cause” was shown, both as expressly required by Rule 35. As we" } ]

[ { "docid": "22705090", "title": "", "text": "a writ of mandamus and issued a rule to show cause why such a writ should not issue to compel petitioner to strike request number 25 from his bill of particulars order. This case was submitted on the briefs, and the Court of Appeals at first denied the writ. The Government petitioned for reconsideration, however, and the Court of Appeals, without taking new briefs or hearing oral argument, reversed itself and without opinion issued a writ of mandamus directing petitioner “to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars.” We granted certiorari, 386 U. S. 955 (1967), because of the wide implications of the decision below for the orderly administration of criminal justice in the federal courts. We vacate the writ and remand the case to the Court of Appeals for further proceedings. Both parties have devoted substantial argument in this Court to the propriety of petitioner’s order. In our view of the case, however, it is unnecessary to reach this question. The peremptory writ of mandamus has traditionally been used in the federal courts only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). While the courts have never confined themselves to an arbitrary and technical definition of “jurisdiction,” it is clear that only exceptional circumstances amounting to a judicial “usurpation of power” will justify the invocation of this extraordinary remedy. De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212, 217 (1945). Thus the writ has been invoked where unwarranted judicial action threatened “to embarrass the executive arm of the Government in conducting foreign relations,” Ex parte Peru, 318 U. S. 578, 588 (1943), where it was the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations, Maryland v. Soper, 270 U. S. 9 (1926), where it was necessary to confine a lower court to the terms of an" }, { "docid": "22744013", "title": "", "text": "Cert. 51a; supra, at 397. If, after appropriate narrowing, the discovery allowed still impels “the Vice President.'.. to claim privilege,” the District Court could “entertain [those] privilege claims” and “review allegedly privileged documents in camera.” 334 F. 3d, at 1107. Mindful of “the judiciary’s responsibility to police the separation of powers in litigation involving the executive,” the Court of Appeals expressed confidence that the District Court would “respond to petitioners’ concern and narrow discovery to ensure that [respondents] obtain no more than they need to prove their case.” Id., at 1106. II “This Court repeatedly has observed that the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 289 (1988) (citing Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U. S. 394, 402 (1976)); see ante, at 380-381 (same). As the Court reiterates, “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires.” Kerr, 426 U. S., at 403 (citing Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943)); ante, at 380-381. Throughout this litigation, the Government has declined to move for reduction of the District Court’s discovery order to accommodate separation-of-powers concerns. See supra, at 398-402. The Court now remands this case so the Court of Appeals can consider whether a mandamus writ should issue ordering the District Court to “explore other avenues, . short of forcing the Executive to invoke privilege,” and, in particular, to “narrow, on its own, the scope of [discovery].” Ante, at 390. Nothing in the District Court’s orders or the Court of Appeals’ opinion, however, suggests that either of those courts would refuse reasonably to accommodate separation-of-powers concerns. See supra, at 397, 398, 401-402, and this page. When parties seeking a mandamus writ decline to avail themselves of opportunities to obtain relief from the District Court, a writ of mandamus ordering the same relief — i. e., here, reined-in discovery — is surely a doubtful proposition. The District Court, moreover, did not err in failing" }, { "docid": "4272825", "title": "", "text": "a motion for a stay, and a motion for a final order, and then ordered the case to proceed to trial as scheduled on January 5, 2005. On December 31, the Government petitioned this court for a brief stay to enable the filing of a writ of mandamus concerning the discovery orders and sanctions imposed by Judge Gilmore. We stayed proceedings in the trial court pending our review of the Government’s petition. Jurisdiction The common-law writ of mandamus is codified at 28 U.S.C. § 1651(a). A writ of mandamus is an extraordinary remedy. “It is charily used and is not a substitute for appeal.” In re Chesson, 897 F.2d 156, 159 (5th Cir.1990). Mandamus is appropriate only “when the trial court has exceeded its jurisdiction or has declined to exercise it, or when the trial court has so clearly and indisputably abused its discretion as to compel prompt intervention by the appellate court.” In re Dresser Ines., Inc., 972 F.2d 540, 543 (5th Cir.1992) (citing In re Chesson, 897 F.2d at 159). Specifically, a court must find three requirements before a writ will issue: (1) “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires”; (2) “the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable”; and (3) “even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Cheney v. United States District Court for the District of Columbia, — U.S. -, 124 S.Ct. 2576, 2587, 159 L.Ed.2d 459 (2004) (partially quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967) (alterations in original; internal citations and quotations omitted)). As the Supreme Court has recently noted, “[t]hese hurdles, however demanding, are not insuperable. [Federal courts] ha[ve] issued the writ to restrain a lower court when its actions would -threaten the separation of powers by ‘embarassfing] the executive arm of the Government.’” Id. at 2587 (quoting" }, { "docid": "22705091", "title": "", "text": "mandamus has traditionally been used in the federal courts only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). While the courts have never confined themselves to an arbitrary and technical definition of “jurisdiction,” it is clear that only exceptional circumstances amounting to a judicial “usurpation of power” will justify the invocation of this extraordinary remedy. De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212, 217 (1945). Thus the writ has been invoked where unwarranted judicial action threatened “to embarrass the executive arm of the Government in conducting foreign relations,” Ex parte Peru, 318 U. S. 578, 588 (1943), where it was the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations, Maryland v. Soper, 270 U. S. 9 (1926), where it was necessary to confine a lower court to the terms of an appellate tribunal's mandate, United States v. United States Dist. Court, 334 U. S. 258 (1948), and where a district judge displayed a persistent disregard of the Rules of Civil Procedure promulgated by this Court, La Buy v. Howes Leather Co., 352 U. S. 249 (1957); see McCullough v. Cosgrave, 309 U. S. 634 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U. S. 701, 706, 707 (1927) (dictum). And the party seeking mandamus has “the burden of showing that its right to issuance of the writ is ‘clear and indisputable.' ” Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 384 (1953); see United States v. Dwell, 172 U. S. 576, 582 (1899). We also approach this case with an awareness of additional considerations which flow from the fact that the underlying proceeding is a criminal prosecution. All our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court. See, e. g.," }, { "docid": "22743974", "title": "", "text": "to file the mandamus petition at the earliest possible moment to avoid laches, on the other. The petition was properly before the Court of Appeals for its consideration. Ill We now come to the central issue in the case — whether the Court of Appeals was correct to conclude it “ha[d] no authority to exercise the extraordinary remedy of mandamus,” 334 F. 3d, at 1105, on the ground that the Government could protect its rights by asserting executive privilege in the District Court. The common-law writ of mandamus against a lower court is codified at 28 U. S. C. § 1651(a): “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” This is a “drastic and extraordinary” remedy “reserved for really extraordinary causes.” Ex parte Fahey, 332 U. S. 258, 259-260 (1947). “The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine [the court against which mandamus is sought] to a lawful exercise of its prescribed juris-’ diction.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). Although courts have not “confined themselves to an arbitrary and technical definition of ‘jurisdiction,’ ” Will v. United States, 389 U. S. 90, 95 (1967), “only exceptional circumstances amounting to a judicial ‘usurpation of power,’ ” ibid., or a “clear abuse of discretion,” Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 383 (1953), “will justify the invocation of this extraordinary remedy,” Will, 389 U. S., at 95. As the writ is one of “the most potent weapons in the judicial arsenal,” id., at 107, three conditions must be satisfied before it may issue. Kerr v. United States Dist. Court for Northern Dist. of Cal, 426 U. S. 394, 403 (1976). First, “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires,” ibid. — a condition designed to ensure that the writ will" }, { "docid": "22656568", "title": "", "text": "use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of “jurisdiction,” Will v. United States, supra, at 95, the fact still remains that “only exceptional circumstances amounting to a judicial 'usurpation of power’ will justify the invocation of this extraordinary remedy.” Ibid. Our treatment of mandamus within the federal court system as an extraordinary remedy is not without good reason. As we have recognized before, mandamus actions such as the one involved in the instant case “have the unfortunate consequence of making the [district court] judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants [appearing] before him” in the underlying case. Bankers Life & Cas. Co. v. Holland, supra, at 384-385, quoting Ex parte Fahey, supra, at 260. More importantly, particularly in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation. It has been Congress’ determination since the Judiciary Act of 1789 that as a general rule “appellate review should be postponed . . . until after final judgment has been rendered by the trial court.” Will v. United States, supra, at 96; Parr v. United States, 351 U. S. 513, 520-521 (1956). A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would run the real risk of defeating the very policies sought to be furthered by that judgment of Congress. As a means of implementing the rule that the writ will issue only in extraordinary circumstances, we have set forth various conditions for its issuance. Among these are that the party seeking issuance of the writ have no other adequate means to attain the relief he desires, Roche v. Evaporated Milk Assn., supra, at 26, and that he satisfy “the burden of showing that [his] right to issuance of the writ is ‘clear and indisputable.’ ” Bankers Life & Cas. Co. v. Holland, supra, at 384, quoting United States v. Duell, 172 U. S. 576, 582 (1899); Will v. United States," }, { "docid": "17680995", "title": "", "text": "pursuant to 28 U.S.C. § 1651(a), the All Writs Act. See also Fed. R.App. P. 21. This writ is available in the federal courts only in extraordinary circumstances, either “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (internal quotation marks omitted). The Supreme Court’s most recent treatment of this topic appears in Cheney v. United States Dist. Court, 542 U.S. 367, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). There, noting that “the writ is one of the most potent weapons in the judicial arsenal” the Court laid out the three conditions that must be satisfied before it may issue: First, the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires- — a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. These hurdles, however demanding, are not insuperable. This Court has issued the writ to restrain a lower court when its actions would threaten the separation of powers by embarrass[ing] the executive arm of the Government or result in the intrusion by the federal judiciary on a delicate area of federal-state relations. Id. at 380-81, 124 S.Ct. 2576 (internal citations and quotation marks omitted). We address these points in turn. 1. Lack of adequate alternative remedy. The longer this case has gone on, the more clear it has become that resolution of Hijazi’s claims — and for that matter, resolution of the government’s right to proceed with this case — will not be forthcoming through the usual procedures. Hijazi is under no" }, { "docid": "4272826", "title": "", "text": "must find three requirements before a writ will issue: (1) “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires”; (2) “the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable”; and (3) “even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Cheney v. United States District Court for the District of Columbia, — U.S. -, 124 S.Ct. 2576, 2587, 159 L.Ed.2d 459 (2004) (partially quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967) (alterations in original; internal citations and quotations omitted)). As the Supreme Court has recently noted, “[t]hese hurdles, however demanding, are not insuperable. [Federal courts] ha[ve] issued the writ to restrain a lower court when its actions would -threaten the separation of powers by ‘embarassfing] the executive arm of the Government.’” Id. at 2587 (quoting Ex parte Republic of Peru, 318 U.S. 578, 588, 63 S.Ct. 793, 799, 87 L.Ed. 1014 (1943)). In fact, “[a]ccepted mandamus standards are broad enough to allow the court of appeals to, prevent a lower court from interfering with a coequal branch’s ability to discharge its constitutional responsibilities.” Cheney, 124 S.Ct. at 2587 (citing Clinton v. Jones, 520 U.S. 681, 701, 117 S.Ct. 1636, 1648, 137 L.Ed.2d 945 (1997)). Relevant to this case, various courts of appeals have found mandamus appropriate in all three issues intertwined in this petition: jury instructions, discovery orders, and assertions of privilege. Both the Second and Third Circuits have permitted the Government to obtain writs of mandamus when a proposed criminal jury instruction clearly violated the law, risked prejudicing the Government at trial with jeopardy attached, and provided the Government no other avenue of appeal. See United States v. Pabon-Cruz, 391 F.3d 86, 91-92 (2d Cir.2004); United States v. Wexler, 31 F.3d 117, 121 (3d Cir.1994). Further, this court, in accord with other circuits, has considered and issued writs of" }, { "docid": "22548351", "title": "", "text": "jurisdiction or to compel them to exercise authority when they have a duty to do so.” DeMasi, 669 F.2d at 117 (citing Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967)). In defining “jurisdiction,” the Supreme Court has avoided a “narrow and technical” construction, directing that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Will, 389 U.S. at 95, 88 S.Ct. at 273 (quoting DeBeers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945)). Two important policy considerations support the concept that writs of mandamus should be granted only sparingly. First, mandamus actions “ ‘have the unfortunate consequence of making the [district court] judge a litigant in the underlying case.” Kerr, 426 U.S. at 402, 96 S.Ct. at 2124 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384-85, 74 S.Ct. 145, 149, 98 L.Ed. 106 (1953)). Second, frequent use of writs of mandamus would ignore the important judicial goal of avoiding piecemeal appellate review. Id. at 403, 96 S.Ct. at 2124; DeMasi, 669 F.2d at 117. To ensure the use of writs in only “extraordinary situations,” the Supreme Court has established two prerequisites to the issuance of a writ: (1) that petitioner have no other “adequate means to attain the [desired] relief,” and (2) that petitioner meet its burden of showing that its right to the writ is “clear and indisputable.” Kerr, 426 U.S. at 403, 96 S.Ct. at 2124; see DeMasi, 669 F.2d at 117. Once these two prerequisites are met, the court’s decision whether to issue the writ is largely one of discretion. Kerr, 426 U.S. at 403, 96 S.Ct. at 2124. See also In re School Asbestos Litig., 921 F.2d 1310, 1314 (3d Cir.1990). Petitioners argue that they cannot otherwise obtain the desired relief, because an interlocutory appeal will not lie. Moreover, petitioners assert, the district court’s order “requires the disclosure of privileged documents reflecting the innermost thoughts of petitioners’ counsel on legal strategy encompassing a period of" }, { "docid": "22748840", "title": "", "text": "its jurisdiction in appointing him and that the Court of Appeals should therefore order the District Court to grant his motion to dismiss his appointment; he did not seek to compel the District Court to exercise some authority it wrongfully declined to use. Although “we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of ‘jurisdiction,'” Kerr, supra, at 402; see Will v. United States, supra, at 95, we have required that petitioners demonstrate a “clear abuse of discretion,” Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 383 (1953), or conduct amounting to “usurpation of [the judicial] power,” De Beers Consolidated Mines, Ltd. v. United States, 325 U. S. 212, 217 (1945), to be entitled to issuance of the writ. To ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek, see, e. g., Kerr, supra, at 403; Allied Chemical Corp. v. Daiflon, Inc., 449 U. S. 33, 35 (1980) (per curiam), and carry “the burden of showing that [their] right to issuance of the writ is ‘clear and indisputable,’” Bankers Life, supra, at 384, quoting United States v. Duell, 172 U. S. 576, 582 (1899). Mallard met this demanding standard. In resting its decision solely on § 1915(d) — the only ground for decision properly before us — the District Court plainly acted beyond its “jurisdiction” as our decisions have interpreted that term, for, as we decide today, § 1915(d) does not authorize coercive appointments of counsel. In addition, Mallard had no alternative remedy available to him. And the principal reasons for our reluctance to condone use of the writ — the undesirability of making a district court judge a litigant and the inefficiency of piecemeal appellate litigation, see, e. g., Kerr, supra, at 402-403; Allied Chemical Corp., supra, at 35 — are not present here. The District Court Judge was never made a party to this action, nor did Mallard’s petition attempt to sever one element of the merits litigation from the rest." }, { "docid": "11696766", "title": "", "text": "concluded that each weighed against severance. As a result, there was no basis for a transfer. Finally, the district court considered whether the Supreme Court’s decision in Atlantic Marine mandated transfer. It held that it did not. The district court determined that key difference between this case and Atlantic Marine was that not all parties to the litigation had signed a forum selection contract. Reading Atlantic Marine to mandate severance and transfer of the party to the contract, the district court reasoned, “would not further the Supreme Court’s stated goal in Atlantic Marine of not disrupting the expectations of parties who bargained for litigation in a particular forum but would, instead, potentially inconvenience and prejudice parties having absolutely no relationship to a forum-selection clause they had no part in conferring.” Following the denial of its severance- and-transfer motion, Rolls Royce petitioned this court for mandamus relief. II. A writ of mandamus is an “extraordinary remedy,” and may only issue if three criteria are met: First, the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires, a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. “These hurdles, however demanding, are not insuperable.” We consider each in turn. A. First, Rolls Royce must show that mandamus is its exclusive vehicle to seek relief. It does. Our court, in accord with our sister circuits, has held “mandamus is an appropriate means of testing a district court’s [section] 1404(a) ruling.” Other means for review are unavailable. Rolls Royce cannot appeal an adverse final judgment under 28 U.S.C. § 1391, because it “would not been able to show that it would have won the case,” had the action been litigated in its desired forum." }, { "docid": "22652340", "title": "", "text": "courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” Will v. United States, supra, at 95, quoting Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy. Will v. United States, supra, at 95. The reasons for this Court’s chary authorization of mandamus as an extraordinary remedy have often been explained. See Kerr v. United States District Court, 426 U. S. 394, 402-403 (1976). Its use has the unfortunate consequence of making a district court judge a litigant, and it indisputably contributes to piecemeal appellate litigation. It has been Congress’ determination since the Judiciary Act of 1789 that as a general rule appellate review should be postponed until after final judgment has been rendered by the trial court. A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would “run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.” Id., at 403. In order to insure that the writ will issue only in extraordinary circumstances, this Court has required that a party seeking issuance have no other adequate means to attain the relief he desires, ibid.; Roche v. Evaporated Milk Assn., supra, at 26, and that he satisfy the “burden of showing that [his] right to issuance of the writ is ‘clear and indisputable.’ ” Bankers Life & Cas. Co. v. Holland, supra, at 384, quoting United States v. Duell, 172 U. S. 576, 582 (1899). In short, our cases have answered the question as to the availability of mandamus in situations such as this with the refrain: “What never? Well, hardly ever!” A trial court’s ordering of a new trial rarely, if ever, will justify the issuance of a writ of mandamus. On the contrary, such an order is not an uncommon feature of any trial which goes to verdict. A litigant is" }, { "docid": "22743976", "title": "", "text": "not be used as a substitute for the regular appeals process, Fahey, supra, at 260. Second, the petitioner must satisfy “‘the burden of showing that [his] right to issuance of the writ is “clear and indisputable.’”” Kerr, supra, at 403 (quoting Bankers Life & Casualty Co., supra, at 384). Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. Kerr, supra, at 403 (citing Schlagenhauf v. Holder, 379 U.S. 104, 112, n. 8 (1964)). These hurdles, however demanding, are not insuperable. This Court has issued the writ to restrain a lower court when its actions would threaten the separation of powers by “embarrassing] the executive arm of the Government,” Ex parte Peru, 318 U. S. 578, 588 (1943), or result in the “intrusion by the federal judiciary on a delicate area of federal-state relations,” Will, supra, at 95 (citing Maryland v. Soper (No. 1), 270 U. S. 9 (1926)). Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus, notwithstanding the District Court’s denial of the motion for certification, might present different considerations. Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders. The mandamus petition alleges that the orders threaten “substantial intrusions on the process by which those in closest operational proximity to the President advise the President.” App. 343. These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise. It is well established that “a President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ‘ordinary individual.’” United States v. Nixon, 418 U. S., at 715. Chief Justice Marshall, sitting as a trial judge, recognized the unique position of the Executive Branch when he stated that “[i]n no case ... would a court be required to proceed against the president as against an ordinary" }, { "docid": "22748839", "title": "", "text": "to represent a poor litigant and therefore to confront a lawyer with an important ethical decision; one need not interpret it to authorize the imposition of sanctions should a lawyer decide not to serve in order to give purpose to the provision. Ill Mallard’s petition to this Court followed the Court of Appeals’ denial of his application for a writ of mandamus. “The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). See also Will v. Calvert Fire Ins. Co., 437 U. S. 655, 661 (1978); Kerr v. United States District Court for Northern District of California, 426 U. S. 394, 402 (1976); Will v. United States, 389 U. S. 90, 95 (1967). Mallard alleged that the District Court did not lawfully exercise its jurisdiction in appointing him and that the Court of Appeals should therefore order the District Court to grant his motion to dismiss his appointment; he did not seek to compel the District Court to exercise some authority it wrongfully declined to use. Although “we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of ‘jurisdiction,'” Kerr, supra, at 402; see Will v. United States, supra, at 95, we have required that petitioners demonstrate a “clear abuse of discretion,” Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 383 (1953), or conduct amounting to “usurpation of [the judicial] power,” De Beers Consolidated Mines, Ltd. v. United States, 325 U. S. 212, 217 (1945), to be entitled to issuance of the writ. To ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek, see, e. g., Kerr, supra, at 403; Allied Chemical Corp. v. Daiflon, Inc., 449 U. S. 33, 35 (1980)" }, { "docid": "17680996", "title": "", "text": "regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. These hurdles, however demanding, are not insuperable. This Court has issued the writ to restrain a lower court when its actions would threaten the separation of powers by embarrass[ing] the executive arm of the Government or result in the intrusion by the federal judiciary on a delicate area of federal-state relations. Id. at 380-81, 124 S.Ct. 2576 (internal citations and quotation marks omitted). We address these points in turn. 1. Lack of adequate alternative remedy. The longer this case has gone on, the more clear it has become that resolution of Hijazi’s claims — and for that matter, resolution of the government’s right to proceed with this case — will not be forthcoming through the usual procedures. Hijazi is under no obligation to travel to the United States, and as long as he does not enter the country, he cannot forcibly be brought before the Central District of Illinois for his arraignment. As we have already noted, there is no extradition treaty between the United States and Kuwait, and so the Kuwaiti government is well within its rights to decide what it wants to do with Hijazi. See generally U.S. Dept. of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2009, at 158 (Kuwait), available at http://www.state.gov/documents/organization/ 123746.-pdf (last visited Nov. 12, 2009) (referred to as “Treaties in Force”). The letters from the Ambassador leave no doubt about the Kuwaiti government’s position: it objects to this prosecution, insofar as it involves Hijazi, and it is standing on its sovereign right to decline to cooperate with the United States. As long as the indictment hangs over Hijazi, he is prejudiced even if he does not travel to the United States. He represents in his" }, { "docid": "10692924", "title": "", "text": "party seeking issuance of the writ have no other adequate means to attain the relief he desires, Roche v. Evaporated Milk Assn., supra, 319 U.S. at 26, 63 S.Ct. at 941, and that he satisfy \"the burden of showing that (his) right to issuance of the writ is ‘clear and indisputable.' \" Banker's Life & Cas. Co. v. Holland, 346 U.S. at 384, 74 S.Ct. at 148 (quoting United States ex rel. Bemardin v. Dwell), 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899); Will v. United States, supra, 389 U.S. at 96, 88 S.Ct. at 274. Moreover, it is important to remember that issuance of the writ is in large part a matter of discretion with the court to which the petition is addressed. Schlagen-haufv. Holder, 379 U.S. 104, 112 n. 8, 85 S.Ct. 234, 239, 13 L.Ed.2d 152 (1964); Pan v. United States, supra, 351 U.S. at 520, 76 S.Ct. at 917. See also Technitrol, Inc. v. McManus, 405 F.2d 84 (C.A.8 1968), cert. denied, 394 U.S. 997, 89 S.Ct. 1591, 22 L.Ed.2d 775 (1969); Pacific Car & Foundry Co. v. Pence, 403 F.2d 949 (C.A.9 1968); Ken, 426 U.S. at 403 [96 S.Ct. 2119], Nor is mandamus a substitute for appeal, \"even though hardship may result from delay and perhaps unnecessary trial.” Ken, 426 U.S. at 404 [96 S.Ct. 2119] (citing Ex parte Fahey, 332 U.S. at 259-60 [67 S.Ct. 1558]; Bankers Life & Casualty Co., 346 U.S. at 382-83 [74 S.Ct. 145]; United States Alkali Export Ass’n v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554,; Evaporated Milk Ass’n, 319 U.S. at 31 [63 S.Ct. 938]). \"The writ is appropriately issued, however, when there is 'usurpation of judicial power' or a clear abuse of discretion.” Bankers Life & Casualty Co., 346 U.S. at 383 [74 S.Ct. 145]." }, { "docid": "22073964", "title": "", "text": "S.Ct. 938, 87 L.Ed. 1185 (1943). See also Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661, 98 S.Ct. 2552 [2556], 57 L.Ed.2d 504 (1978); Kerr v. United States District Court, for Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119 [2123], 48 L.Ed.2d 725 (1976); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269 [273], 19 L.Ed.2d 305 (1967)____ Although “we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of ‘jurisdiction,’” Kerr, supra, at 402, 96 S.Ct. 2119 [at 2124], 48 L.Ed.2d 725; see Will v. United States, supra, at 95, 88 S.Ct. 269 [at 273], 19 L.Ed.2d 305, we have required that petitioners demonstrate a “clear abuse of discretion,” Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145 [148], 98 L.Ed. 106 (1953), or conduct amounting to “usurpation of [the judicial] power,” De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130 [1133], 89 L.Ed. 1566 (1945), to be entitled to issuance of the writ. To ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek, see, e.g., Kerr, supra, at 403, 96 S.Ct. 2119 [at 2124], 48 L.Ed.2d 725; Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188 [190], 66 L.Ed.2d 193 (1980)(per curiam), and carry “the burden of showing that [their] right to issuance of the writ is ‘clear and indisputable,”’ Bankers Life, supra, at 384, 74 S.Ct. 145 [at 148], 98 L.Ed. 106, quoting United States [ex rel. Bemardin] v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286 [287], 43 L.Ed. 559 (1899). Mallard v. United States Dist. Court, 490 U.S. 296, 308-09, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989). This Court adopted the following framework for determining the propriety of mandamus relief in In re Bendectin Prod. Liab. Litig., 749 F.2d 300 (6th Cir.1984): (1)The party seeking the writ has no other adequate means, such as direct appeal, to attain the" }, { "docid": "22451370", "title": "", "text": "95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967)). In defining “jurisdiction,” the Supreme Court has avoided a “narrow and technical” construction, directing that “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Will, 389 U.S. at 95, 88 S.Ct. at 273 (quoting DeBeers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945)). Two important policy considerations support the concept that writs of mandamus or prohibition should be granted only sparingly. First, mandamus actions “ ‘have the unfortunate consequence of making the [district court] judge a litigant ...’ in the underlying case.” Kerr, 426 U.S. at 402, 96 S.Ct. at 2124 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384-85, 74 S.Ct. 145, 148-49, 98 L.Ed. 106 (1953)). Second, frequent use of writs of mandamus would ignore the important judicial goal of avoiding piecemeal appellate review. Kerr, 426 U.S. at 403, 96 S.Ct. at 2124; DeMasi, 669 F.2d at 117. To ensure the use of writs in only “extraordinary situations,” the Supreme Court has established two prerequisites to the issuance of a writ: (1) that the petitioner have no other “adequate means to attain the [desired] relief,” and (2) that the petitioner meet its burden of showing that its right to the writ is “clear and indisputable.” Kerr, 426 U.S. at 403, 96 S.Ct. at 2124; see DeMasi, 669 F.2d at 117. Once these two prerequisites are met, the court’s decision of whether to issue the writ is largely one of discretion. Kerr, 426 U.S. at 403, 96 S.Ct. at 2124. III. Although recognizing constraints on the federal courts’ writ power, the petitioners argue that mandamus or prohibition generally is appropriate to prevent the district court from acting outside its jurisdictional authority. We agree. Courts traditionally have employed writs to restrain jurisdictional excesses, particularly when a lower court has acted without authority to do so. Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). However, mere doubt regarding the trial court’s" }, { "docid": "22743975", "title": "", "text": "has been to confine [the court against which mandamus is sought] to a lawful exercise of its prescribed juris-’ diction.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). Although courts have not “confined themselves to an arbitrary and technical definition of ‘jurisdiction,’ ” Will v. United States, 389 U. S. 90, 95 (1967), “only exceptional circumstances amounting to a judicial ‘usurpation of power,’ ” ibid., or a “clear abuse of discretion,” Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 383 (1953), “will justify the invocation of this extraordinary remedy,” Will, 389 U. S., at 95. As the writ is one of “the most potent weapons in the judicial arsenal,” id., at 107, three conditions must be satisfied before it may issue. Kerr v. United States Dist. Court for Northern Dist. of Cal, 426 U. S. 394, 403 (1976). First, “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires,” ibid. — a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process, Fahey, supra, at 260. Second, the petitioner must satisfy “‘the burden of showing that [his] right to issuance of the writ is “clear and indisputable.’”” Kerr, supra, at 403 (quoting Bankers Life & Casualty Co., supra, at 384). Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. Kerr, supra, at 403 (citing Schlagenhauf v. Holder, 379 U.S. 104, 112, n. 8 (1964)). These hurdles, however demanding, are not insuperable. This Court has issued the writ to restrain a lower court when its actions would threaten the separation of powers by “embarrassing] the executive arm of the Government,” Ex parte Peru, 318 U. S. 578, 588 (1943), or result in the “intrusion by the federal judiciary on a delicate area of federal-state relations,” Will, supra, at 95 (citing Maryland v. Soper (No. 1), 270 U. S. 9 (1926)). Were the Vice President not a" }, { "docid": "14379960", "title": "", "text": "90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (noting that the writ of mandamus is one of “the most potent weapons in the judicial arsenal”); note 15, ante (common-law remedy codified in the All Writs Act). Three conditions circumscribe use of the writ: First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires — a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. Cheney, 542 U.S. at 380-81, 124 S.Ct. 2576 (alternations, internal quotation marks, and citations omitted). Mandamus relief is appropriate “in extraordinary circumstances,” when, for example, a district court’s order “amounts to a judicial usurpation of power or a clear abuse of discretion, or otherwise works a manifest injustice.” Mohawk Indus., 558 U.S. at 111, 130 S.Ct. 599 (alteration and internal quotation marks omitted). Two aspects of ATS jurisprudence, however, urge greater appellate oversight through use of mandamus in appropriate cases. First, ATS suits often create particular “risks of adverse foreign policy consequences,” Sosa, 542 U.S. at 728, 124 S.Ct. 2739, obliging courts to be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs,” id. at 727, 124 S.Ct. 2739. This risk of treading into matters within the province of other branches of government, and intruding into delicate areas of intergovernmental relations, warrants closer appellate scrutiny through supervisory mandamus review. See Cheney, 542 U.S. at 380-82, 124 S.Ct. 2576. Appellate courts have therefore been less hesitant to issue the writ when a lower-court decision threatens to affect the foreign policy of the United States. See, e.g., Ex parte Republic of Peru, 318 U.S. 578, 586, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); In re Austrian, German Holocaust" } ]

[ { "docid": "22852077", "title": "", "text": "compensation in whole or part, to ameliorate hardships falling upon them as a result of the seizure of their property. But that intention detracted nothing from title acquired by the United States or its power to retain or dispose of the property upon such terms and conditions as from time to time Congress might direct. As the taking left in enemy owners no beneficial right to, or interest in, the property, the United States did not take or hold as trustee for their benefit. Respondent maintains that § 11 of the Settlement of War Claims Act of 1928, amending § 9 of the Trading with the Enemy Act of 1917 as amended, vested in former owners an immediate right to the return of their property and that, having complied with the provisions of the Act, they cannot be deprived of that right. It argues that its interest in the property taken was not “completely and irrevocably destroyed” and that the Settlement of War Claims Act was an Act under which it “could and did obtain a vested interest in its property.” To the extent that the, argument rests upon the assumption that the taking did not divest enemy owners of every right or that the United States did not acquire absolute title, it is fallacious and need not be noticed. The Settlement of War Claims Act was not a conveyance and did not grant former owners any right or title to, or interest in, the money or property taken by the Custodian. As amended by it, pertinent provisions of the Trading with the Enemy Act are indicated in the margin. No change of title was effected by that Act; and in proceedings under it none takes place before delivery to claimant. As the United States owned all, claimant’s consent to postponement of delivery of part did not improve its position as to the rest. The President did not order delivery. Action by him wras neither a condition precedent nor a bar to suit. The statute, § 9 (a), required the money and property to be retained by the Custodian or" } ]

[ { "docid": "13888100", "title": "", "text": "case remanded for trial in accordance with the views expressed in this opinion. Reversed and remanded. 50 U.S.C.A. War Appendix, § 9(a), 41 Stat. 977, provides: “Any person not an enemy or ally of enemy claiming any interest, right, or title in any money or other property * * * conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him * * * may institute a suit in equity * * * in the district court of the United States * * * to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment, convey anee, transfer, assignment, or delivery to said claimant of the money or other property so held by the Alien Property Custodian * * * or the interest therein to which the court shall determine said claimant is entitled.” 50 U.S.C.A. Appendix, § 616, 55 Stat. 839, 840, amending § 5(b) of the Trading with the Enemy Act, provides: “During the time of war * * * any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, * * (Italics supplied.) \" The language of amended § 5(b) as to vesting is — “Such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States.” And the position of the Custodian is that this language vests the property in' the Custodian unqualifiedly and completely. The language used is broad, but it is no broader than the language used in the vesting provision of the original Act, Act of March 28, 1918, amending § 12, c. 28, 40 Stat. at L." }, { "docid": "22544276", "title": "", "text": "and the property of other foreign interests than in World War I. Now there is the “freezing” or “blocking” of foreign funds aimed at the immobilization of foreign assets in the United States by prohibiting, without a license, any transactions involving them — a program initiated after the invasion by Germany of Denmark and Norway and administered by the Treasury. If the Treasury refuses a license permitting payment of creditors out of blocked funds, neither the creditor nor the owner has any remedy as a matter of right under the Act. It is said that to allow creditors of certain aliens whose property has been vested in the Alien Property Custodian to maintain suits but to disallow suits by creditors of aliens whose funds are merely frozen is to destroy consistency in the position of creditors under the Trading with the Enemy Act. Moreover, § 9 (a) permits suits on debt claims only if the debt is one “owing from an enemy or ally of enemy” whose property has been taken. By the 1941 amendment to § 5 (b) the vesting power has not been so limited but extends to “any property or interest of any foreign country or national.” The argument is that to construe § 9 (e) so as to permit creditors of an enemy to sue is to discriminate without warrant against creditors of non-enemy foreign nationals who are given no such remedy. Moreover, it is said that if § 9 (e) is not a barrier to suits, a race of diligence would be started with no guarantee of any equitably ordered priority in the payment of the claims out of the seized property. It is also argued that if these suits are allowed the operations of the Custodian would be burdened with litigation. We have concluded that however meritorious these considerations are, they raise questions of policy for Congress. We are concerned only with the right to sue on a debt under § 9. Congress granted that right to some claimants and withheld it from others. Whether its choice was wise or not is not for" }, { "docid": "13888104", "title": "", "text": "or otherwise equivalent to, enemy control. Such arrangements are often hard’to detect and usually harder to prove. To defeat them, Congress authorized the Custodian to vest in himself the property of any foreign national. It does not appear that they can be defeated otherwise. I do not understand how § 9(a) can be thought to give appellant a claim to recover property which is no longer his. The court states that § 9(a) specifically confers jurisdiction to inquire whether seized property is owned by an enemy or ally of eri1 emy, and if not so owned, to order its return. I cannot find this provision in § 9(a). What this section, as I read it, specifically confers is jurisdiction to award to a claimant whose “interest” or “title” is “established * * * the * * * property * * * or the interest therein to which the court shall determine said claimant is entitled.” Appellant has no interest or title in the property in suit, since the property is vested unqualifiedly in the Custodian. Compensation for the taking of the property is a different matter. The Tucker Act, 28 U.S.C.A. § 250, permits recovery in the Court of Claims on any claim “founded upon the Constitution of the United States or any law of Congress * * * [or] upon any contract, express or implied, with the Government of the United States * * And “it is settled by many decisions of which we need only cite the last — Yearsley v. W. A. Ross, 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554— that when the United States seizes the property of an individual, not an enemy, in pursuance of a public purpose, it impliedly promises to pay just compensation, and that that promise is ‘just compensation’ under the Fifth Amendment.” Silesian-American Corporation v. Markham, 2 Cir., 156 F.2d 793, 797. The former owner’s claim to compensation is not affected by the provision in § 7(c) that “the sole relief and remedy of any person having any claim to any money or other property * * * transferred”" }, { "docid": "4778129", "title": "", "text": "RAYFIEL, District Judge. This is a motion to dismiss the complaint herein on the ground that the Court lacks jurisdiction of the subject matter of the action, in that this is an action against the United States which does not come within its consent to be sued, and is barred by Section 33 of the Trading With The Enemy Act, Title 50 U.S.C.A. Appendix, § 33. The complaint states a cause of action against the defendant based upon the Fifth Amendment to the Constitution of the United States and the Trading With The Enemy Act, Title 50 U.S.C.A.Appendix, §§ 1 through 40. It alleges, inter alia, that on August 21, 1944, the then Alien Property Custodian, the predecessor in office of the defendant, caused to be executed Vesting Order No. 4046, respecting 10 shares of the capital stock of the Johnson Estate, a New York corporation, which had been bequeathed to the plaintiffs by the will of one Catherine Johnson Ashe; that pursuant to the said vesting order he seized the said property; that the said plaintiffs were infants at the time of the vesting, and were not enemies or allies of an enemy of the United States, within the meaning of the Trading With The Enemy Act, 50 U.S.C.A.Appendix, supra; that on June 16, 1952, the plaintiffs filed with the defendant a notice of claim to the property in question; and that the defendant and his predecessor retained, and the defendant is still retaining, the said property, and, in violation of law, has refused to return it to the plaintiffs. For the purpose of this motion, the defendant admits the allegations of the complaint, but contends that this suit is barred by the provisions of Section 33 of the Trading With The Enemy Act, 50 U.S.C.A.Appendix, § 33, supra. That section reads as follows: “No return may be made pursuant to section 9 or 32 (section 9 or 32 of this Appendix) unless notice of claim has been filed: (a) in the case of any property or interest acquired by the United States prior to December 18, 1941, by" }, { "docid": "14354642", "title": "", "text": "alien without remedy against the person who should make the transfer. Moreover, neither § 5(b) nor any other section of the Trading with the Enemy Act gave him any remedy, unless it were § 9(a). A friendly alien stands in a position different from either an enemy or a citizen whose property has been seized. A citizen may avail himself of § 9(a) to reclaim his property, as much when it has been seized under § 5(b) as under § 7(c) ; if he is successful in the suit, he will be restored to possession, for the seizure will be shown to have been unlawful. Such too was the position of a friendly alien under § 9(a) in the original Act. Ah enemy or an ally of an enemy is positively and intentionally denied relief, not only in § 9(a) but elsewhere, because his property may be forfeited; he can rely only upon the grace of Congress. But by hypothesis a friendly alien can not reclaim his property if the seizure has been lawful ;• and yet he cannot be deprived of it without just compensation, because the Fifth Amendment protects him. Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229, 75 L.Ed. 473. Thus it can be argued with much force that, unless some provision can be found by which he may secure compensation, § 5(b) is unconstitutional; and, if so, it would at best be doubtful whether the protection given by subsection (2) would be valid. It so chances that both the debtor and the Custodian take the position that a friendly alien may not sue under § 9(a). That may be so, for, although he would have formal capacity to sue under that section — not being an enemy or an ally of an enemy — in order to recover he would have to “establish” some “interest, right, or title” in the seized property; yet, if § 5(b) is valid, the seizure would be valid, and by the seizure all his “interest, right and title” would have “vested” in the Custodian. However that" }, { "docid": "1444649", "title": "", "text": "well as of the purchaser of the stock. It is not apparent how any right to enforce the agreement could arise before compliance with an express condition precedent to any obligation on the part of the sellers, or how, consequently, any right or interest in the shares of stock vested in the plaintiff before the condition was fulfilled. See 2 Williston on Contracts, Revised Edition, Section 364 A, p. 1064. Moreover it is evident that plaintiff can not fulfill the condition precedent to its acquiring any right to the transfer of the stock or any interest therein since the Secretary of the Treasury has announced in Public Circular No. 31, August 2, 1946,' 11 F.R. 8351,' that the vesting of property by the Custodian operates as a final denial of any pending application for a license and that no application for a license will thereafter be entertained or granted. Furthermore Section 9(a) of The Trading With The Enemy Act provides the exclusive remedy available to a person claiming vested property. It states that only where a person claims “any interest, right, or title”, the claimant may sue to establish the “interest, right, title” and, if established, the court shall order the transfer or delivery of the property. Since the plaintiffs allegations disclose that it can not establish any right, title or interest in the shares of Schering stock it can not successfully maintain a suit for the transfer or delivery of the stock under Section 9(a) of the Act. Nor can it successfully maintain a suit against the United States for specific performance of a contract to sell the stock to it because the United States has not consented to be sued under those circumstances. See Iwazo Yamashita v. Clark, D.C., 75 F.Supp. 51, 56. The vesting order of the Custodian did not deprive the plaintiff of any property in violation of due process of law. It merely prevented the performance of the agreement under which the plaintiff sought to acquire the shares. In no event could the Custodian’s knowledge of plaintiff’s agreement to purchase the shares obligate him to" }, { "docid": "2234177", "title": "", "text": "held the stock of the plaintiff corporation for the benefit of Schenker & Company, Berlin, a national of Germany, and that the defendant has determined that the interests of the United States require the liquidation of the corporation. The plaintiffs contend that this suit has been properly brought under Section 9(a) of the Trading With the Enemy Act as amended, 50 U.S.C.A. Appendix § 9(a), for a return of their property, because neither is an enemy nor ally of an enemy and because the property is not controlled by an enemy, an ally of an enemy or a national of any foreign or enemy country. The defendant contends that the court is without jurisdiction, that Section 9(a) of the Trading With the Enemy Act as amended applies only to seizures of property of enemies or allies of enemies under Section 7(c) of the Act and not to action taken with respect to property of a foreign “national” under Section 5(b) of the Act, as so amended, pursuant to which the property was vested in the Alien Property Custodian. The defendant further contends that adequate administrative remedies for the adjustment of plaintiffs’ claims have been set up by the Alien Property Custodian pursuant to Section 5(b) as amended and regulations and Executive Orders, issued thereunder, and that plaintiffs are not entitled to judicial relief, because they have not exhausted these administrative remedies before bringing this suit. Title III, Section 301 of the First War Powers Act, 1941, which amended Section 5(b) of the Trading With the Enemy Act, authorizes the President during the time of war or other national emergency to regulate, direct or prohibit any dealing in, or exercising any right with respect to any transaction involving any property in which any foreign country or national thereof has any interest by any person or with respect to any property, subject to the jurisdiction of the United States, and that any property or interest of any foreign country or national thereof shall vest upon terms directed by the President in such agency as may be designated by him, and upon such" }, { "docid": "2234178", "title": "", "text": "Alien Property Custodian. The defendant further contends that adequate administrative remedies for the adjustment of plaintiffs’ claims have been set up by the Alien Property Custodian pursuant to Section 5(b) as amended and regulations and Executive Orders, issued thereunder, and that plaintiffs are not entitled to judicial relief, because they have not exhausted these administrative remedies before bringing this suit. Title III, Section 301 of the First War Powers Act, 1941, which amended Section 5(b) of the Trading With the Enemy Act, authorizes the President during the time of war or other national emergency to regulate, direct or prohibit any dealing in, or exercising any right with respect to any transaction involving any property in which any foreign country or national thereof has any interest by any person or with respect to any property, subject to the jurisdiction of the United States, and that any property or interest of any foreign country or national thereof shall vest upon terms directed by the President in such agency as may be designated by him, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, administered, liquidated or sold for the benefit of the United States. Sect-'on 9(a) of the Trading With the Enemy Act as amended, provides that any person not an enemy or an ally of an enemy claiming any right or title in any property which may have been seized by the Alien Property Custodian may file with the custodian a notice of his claim and the President after application is made therefor, may order the delivery to the claimant of the property so held. It further specifically provides that if the claimant shall have filed such a notice but shall not have made any application to the President, said claimant may institute a suit to establish his right or interest and that if so established, the court shall order the delivery to the claimant of the property so held or the interest therein to which the court shall determine said claimant is entitled. It also expressly provides that if suit shall" }, { "docid": "22164654", "title": "", "text": "Mr. Justice Douglas delivered the opinion of the Court. Respondent brought this suit to reclaim property which the Alien Property Custodian, acting under § 5 (b) of the Trading With the Enemy Act, 40 Stat. 411, 50 U. S. C. App. § 1, as amended by the First War Powers Act of 1941, 55 Stat. 839, 50 U. S. C. App. (Supp. V, 1946), § 5 (b), had vested in himself. Respondent is a corporation organized under the laws of Switzerland and having its principal place of business in that country. The property seized consisted of shares of stock in corporations organized under the laws of various States of this nation and of an interest in a contract between two such corporations. The complaint alleges that respondent is not an enemy or ally of an enemy and that at no time at or since the vesting has the property in question been owned or controlled, directly or indirectly, in whole or in part, by an enemy, ally of an enemy, or a national of a designated enemy country. It also alleges that none of the property has been owing or belonging to or held on account of or for the benefit of any such person or interest. We construe these allegations to mean that the property is free of all enemy taint and particularly that the corporations whose shares have been seized, the corporations which have a contract in which respondent has an interest, and respondent itself, are companies in which no enemy, ally of an enemy, nor any national of either has any interest of any kind whatsoever, and that respondent has not done business in the territory of the enemy or any ally of an enemy. Those allegations, as so construed, are indeed taken as true for the purposes of the present ruling, since petitioner’s motion to dismiss is based solely on the fact that respondent is a national of a foreign country. The District Court granted petitioner’s motion to dismiss. The Court of Appeals reversed, one justice dissenting. 81 U. S. App. D. C. 284, 158 F." }, { "docid": "2234189", "title": "", "text": "recourse to the judicial remedy without having exhausted his administrative remedies. Stoehr v. Wallace, 255 U.S. 239, 246, 41 S.Ct. 293, 65 L.Ed. 604. It is not true, as defendant contends, that if Section 9(a) were held applicable to Section 5(b) as amended the Alien Property Custodian would be required to return the property on a showing that the claimant was neither an enemey nor ally of enemy and that thereby he would be prevented from holding property of a national of a foreign or enemy country seized by him. The fact that anyone other than an enemy or ally of enemy may recover his property on proving that he is not a national of a foreign or enemy country within the meaning of the Act or the President’s definition, does not establish that a foreign or enemy country or national thereof within such meaning will succeed in obtaining possession of property. The decision of this court that Section 9 applies to action taken under Section 5(b) as amended renders it unnecessary to determine whether Section 5(b) otherwise would be unconstitutional and whether if Section 9 does not apply and the Act is unconstitutional the plaintiff was required to seek relief from the Alien Property Custodian under the administrative remedies provided by rules and regulations and orders of the President before resorting to the court. The motion to dismiss the complaint is accordingly denied and the application of the plaintiffs granted only to the extent: of directing the defendant not to liquidate the business of the company or sell its stock pending the determination whether they are nationals of a foreign or enemy country, or whether the seized property is owned or controlled by a foreign or enemy country or national thereof. This disposition of the motion follows the specific direction of Congress in Section 9(a) that the property shall be retained by the Custodian until the suit is terminated, without affecting any rights of the plaintiffs under the Constitution and without any apparent interference with the successful prosecution of the war." }, { "docid": "2234180", "title": "", "text": "be so instituted such property shall be retained in the custody of the Alien Property Custodian until the suit has been terminated. Title III of the First War Powers Act empowers the President to prescribe definitions not inconsistent with its purpose for any and all of the terms used therein. Section 5, subd. E of Executive Order 8389 as amended, 12 U.S.C.A. § 95 note, provides that the term “national” shall include any corporation which since the effective date of the order has been controlled by or a substantial part of the stock of which has been owned or controlled directly or indirectly by a foreign country or any national thereof and any person to the extent such person is or has been since such date acting directly or indirectly for the benefit or on behalf of any national of such foreign country and any person who there is reasonable cause to believe is a “national”, and any other person who is determined by the Secretary of the Treasury to be, or to have been, since such effective date acting or purporting to act directly or indirectly for the benefit or under the direction of a foreign country designated in the order as a national thereof. Executive Order No. 9193, issued by the President, amending Executive Order 9095, 50 U.S.C.A. Appendix § 6 note, establishes the office of the Alien Property Custodian and empowers the custodian to manage, supervise, control or vest any business enterprise which is a national of a designated enemy country and with respect to any property owned or controlled on behalf of any enemy country or national thereof. It vests in the custodian all powers and authority conferred upon the President by Section 5(b) of the Trading With the Enemy Act as amended, and it provides that the term “designated enemy country” shall mean any foreign country with which the United States is at war and that the term “national” shall have the meaning prescribed in Section 5 of Executive Order No. 8389 as amended, provided, however, that persons not within designated enemy countries shall not" }, { "docid": "13888092", "title": "", "text": "GRONER, C. J. The decision in this case turns upon the question whether the amendment of § 5(b) of the Trading with the Enemy Act by Title HI of the First War Powers Act oí 1941 has, by necessary implication, the effect of nullifying and rendering impotent § 9(a) of the original Act. Or, stated more concisely, whether the amendment of § 5(b) in 1941, of itself and'without more, renders inoperative the rights conferred under § 9(a) of the original Act. Appellant is a corporate national of Switzerland and at the outbreak of World War II was the owner of certificates of stock in sundry American corporations. The Alien Property Custodian, upder authority of amended § 5(b) and under Executive Orders 9095 and 9193, 50 U.S.C.A. Appendix, § 6 note, seized appellant’s property as the property of a “foreign country or a national thereof” and vested the same in himself. Since precisely this procedure is authorized under that section, obviously no exception can be had to this. But at that point appellant, claiming the right to recover the vested property under the provisions of § 9(a) of the Act, brought this suit, alleging, among other things, that before and at the time of the seizure it was a citizen of Switzerland; that it was not an enemy or ally of enemy; that it was not a “national of a designated enemy country”; and that the property was not then nor at any other time held for the benefit of an enemy or ally of enemy, nor for the benefit of a “national of a designated enemy country.” The Custodian filed a motion to dismiss on the ground that the complaint failed to state a valid cause of action, and the District Court, without opinion, granted the motion. From that action this appeal is taken. The basis of the motion to dismiss-is that it appears on the face of the complaint that appellant is a national of a foreign country and, this being conceded, the Custodian insisted and now insists that under the amended § 5(b) the vesting is absolute and" }, { "docid": "2234181", "title": "", "text": "since such effective date acting or purporting to act directly or indirectly for the benefit or under the direction of a foreign country designated in the order as a national thereof. Executive Order No. 9193, issued by the President, amending Executive Order 9095, 50 U.S.C.A. Appendix § 6 note, establishes the office of the Alien Property Custodian and empowers the custodian to manage, supervise, control or vest any business enterprise which is a national of a designated enemy country and with respect to any property owned or controlled on behalf of any enemy country or national thereof. It vests in the custodian all powers and authority conferred upon the President by Section 5(b) of the Trading With the Enemy Act as amended, and it provides that the term “designated enemy country” shall mean any foreign country with which the United States is at war and that the term “national” shall have the meaning prescribed in Section 5 of Executive Order No. 8389 as amended, provided, however, that persons not within designated enemy countries shall not be deemed to be nationals of a designated enemy country unless the Alien Property Custodian determines that such person is controlled by or acting for or on behalf of (including cloaks for) a designated enemy country or a person within such country or that the national interest of the United States requires that such person be treated as a national of a designated enemy country. It provides that for the purpose of this executive order any determination by the Alien Property Custodian, that any property or interest of any foreign country or national thereof is the property or interest of a designated enemy country or national thereof, shall be final and conclusive as to the power of the Alien Property Custodian to exercise any of the power or authority conferred upon the President by Section 5(b) of the Trad-, ing With the Enemy Act, as amended. Regulations by the Alien Property Custodian, Section 501.1(b) (7 F.R. 2290, March 26, 1942), establishes a committee to be known as the Vested Property Claims Committee to hear claims" }, { "docid": "2234187", "title": "", "text": "341, 47 S.Ct. 611, 612, 71 L.Ed. 1083; Russian Volunteer Fleet v. United States, 282 U.S. 481, 491, 51 S.Ct. 229, 75 L.Ed. 473; Becker Steel Co. v. Cummings, 296 U.S. 74, 79, 56 S.Ct. 15, 80 L.Ed. 54. The legislative history of the Act does not disclose that this construction is inconsistent with the purposes of Congress in extending the War Powers of the President over nationals of foreign countries. The authorities cited by the defendant which hold that the court should act with great restraint in granting injunctions in cases in which important public or national interests are involved, especially in time of war, are not applicable. Discretion is not involved. None is left to the court. Congress, in which the ultimate power to declare public policy is vested, makes it mandatory that the Alien Property Custodian should in case of suit brought against him retain the property in his possession until final disposition of the suit. He would be acting without jurisdiction and beyond the powers delegated to him were he to do otherwise. Congress has determined that there shall be a judicial remedy afforded to all but enemies and allies of an enemy in cases of erroneous seizure of their property notwithstanding the existence of war. The Act itself provides that any person not an enemy or ally of enemy may apply either to the President or to the Alien Property Custodian for the return of his property or maintain a suit in equity to establish his right to the possession of such property. It is true that in Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, a rate case, relied on by the government, it was held that notwithstanding that the Interstate Commerce Act allowed the choice of an administrative or judicial remedy, the plaintiff must exhaust his administrative remedy before he may seek the judicial remedy. However, this case is not controlling because the same court subsequently held that under the Trading With the Enemy Act the plaintiff may have" }, { "docid": "2234176", "title": "", "text": "and proceeded to liquidate the corporation. The order vesting in the Alien Property Custodian the stock of the corporation in Draeger’s náme, alleges that he holds it for the benefit of Schenker & Company, Berlin, Germany, and it “represents ownership of said business enterprise which is a national of a designated enemy country (Germany).” Draeger asserts that he holds the stock solely for his own benefit. He denies that he holds it for the benefit of Schenker & Company, of Berlin, and denies that he or the corporation ever has been controlled by or ever acted for or as a cloak for Germany or any other enemy country or any person within such country. The affidavits submitted in opposition to the motion set forth that the defendant after thorough investigation, revealing facts alleged in the affidavits, found that the corporation and Draeger were nationals of Germany as defined in Executive Order 9095 as amended; that they were controlled by or acting for or as a cloak for Germany or persons within Germany, and that Draeger held the stock of the plaintiff corporation for the benefit of Schenker & Company, Berlin, a national of Germany, and that the defendant has determined that the interests of the United States require the liquidation of the corporation. The plaintiffs contend that this suit has been properly brought under Section 9(a) of the Trading With the Enemy Act as amended, 50 U.S.C.A. Appendix § 9(a), for a return of their property, because neither is an enemy nor ally of an enemy and because the property is not controlled by an enemy, an ally of an enemy or a national of any foreign or enemy country. The defendant contends that the court is without jurisdiction, that Section 9(a) of the Trading With the Enemy Act as amended applies only to seizures of property of enemies or allies of enemies under Section 7(c) of the Act and not to action taken with respect to property of a foreign “national” under Section 5(b) of the Act, as so amended, pursuant to which the property was vested in the" }, { "docid": "13888094", "title": "", "text": "not subject to attack. To avoid conflict with the constitutional prohibition against the taking of property of friendly aliens without just compensation,, which such a construction would raise, the Custodian suggests that appellant may obtain just compensation by way of suit against the United States in the Court of Claims. But that suggestion conflicts with. § 7(c) of the Act, which provides — “The-sole relief and remedy of any person having any claim to any money or other property * * * transferred * * * to the Alien Property Custodian * * * shall be that provided by the terms of this-Act,” i. e., § 9(a). Thus appellant’s right of recovery, if it has any, is limited by statutory terms to a suit under § 9(a), for only to that extent and in that manner has the United States consented to be sued. Pflueger v. United States, 73 App.D.C. 364, 121 F.2d 732, certiorari denied 314 U.S. 617, 62 S.Ct. 98, 86 L.Ed. 497; Sigg-Fehr v. White, 52 App.D.C. 215, 285 F. 949. It will thus be seen that the Custodian’s position is not only that the vesting of the property is within the authority delegated to him — which is not denied — but also that § 9(a) of the Act, which specifically confers jurisdiction on the several district ■courts to entertain a proceeding to inquire into the question whether the seized property is owned by “an enemy or ally of enemy,” and if not so owned, to order its return, is, since the passage of the amendment to § 5(b), inapplicable in the case ■of property owned by any foreign national which has been seized by the Custodian. The Custodian attempts to avoid the stark obliteration from § 9(a) of the words “Any person not an enemy or ally of enemy,” by saying that that section limits recovery to “the interest therein” of the claimant, and accordingly the Custodian insists there may be no recovery here because seizure under amended § 5(b) destroys all interests of all aliens in. seized property. But there is nothing in §" }, { "docid": "12020499", "title": "", "text": "averments of the complaint, plaintiff is an enemy within the meaning of the Trading with the Enemy Act so that she may not maintain an action under Section 9(a) of the Trading with the Enemy Act, to recover her property vested by the Alien Property Custodian. The Government contends that the court rightfully held that plaintiff was barred from bringing her action and renews its contention that, under Section 39, plaintiff is absolutely barred from maintaining any action as a citizen of Japan. Section 2 of the Trading with the Enemy Act of 1917, as amended, U.S.C.A. Title 50 Appendix, defines “enemy” as: “Any individual * * * of any nationality, resident within the territory * * * of any nation with which the United States is at war * * *.” Section 7(c) provides for the seizure of enemy property belonging to or held for the benefit of an enemy, by the Alien Property Custodian; Section 9(a) that “Any person not an enemy * * * claiming any interest, * * * in any money or other property which may have been * * * seized by” the Custodian “ * * * may file * * * a notice of his claim” and, if this is denied, “institute a suit * * * in the district court * * * to establish the interest, * * * so claimed,” and if the claim is substantiated “the court shall order the * * * delivery to said claimant of * * * property so held.” In pursuance of these pertinent statutes, plaintiff based her suit on her averments that she was a permanent resident of Chicago and, therefore, though an alien, not an enemy within the definition contained in Section 2; that she had never, since her marriage to an American resident, resided within Japan within the meaning of the Act and that, therefore, under Section 9(a) she was entitled to recover her assets taken over 'by the Custodian. Whether the District Court rightfully held that she was an alien enemy within the meaning of the Act and, therefore," }, { "docid": "13888093", "title": "", "text": "to recover the vested property under the provisions of § 9(a) of the Act, brought this suit, alleging, among other things, that before and at the time of the seizure it was a citizen of Switzerland; that it was not an enemy or ally of enemy; that it was not a “national of a designated enemy country”; and that the property was not then nor at any other time held for the benefit of an enemy or ally of enemy, nor for the benefit of a “national of a designated enemy country.” The Custodian filed a motion to dismiss on the ground that the complaint failed to state a valid cause of action, and the District Court, without opinion, granted the motion. From that action this appeal is taken. The basis of the motion to dismiss-is that it appears on the face of the complaint that appellant is a national of a foreign country and, this being conceded, the Custodian insisted and now insists that under the amended § 5(b) the vesting is absolute and not subject to attack. To avoid conflict with the constitutional prohibition against the taking of property of friendly aliens without just compensation,, which such a construction would raise, the Custodian suggests that appellant may obtain just compensation by way of suit against the United States in the Court of Claims. But that suggestion conflicts with. § 7(c) of the Act, which provides — “The-sole relief and remedy of any person having any claim to any money or other property * * * transferred * * * to the Alien Property Custodian * * * shall be that provided by the terms of this-Act,” i. e., § 9(a). Thus appellant’s right of recovery, if it has any, is limited by statutory terms to a suit under § 9(a), for only to that extent and in that manner has the United States consented to be sued. Pflueger v. United States, 73 App.D.C. 364, 121 F.2d 732, certiorari denied 314 U.S. 617, 62 S.Ct. 98, 86 L.Ed. 497; Sigg-Fehr v. White, 52 App.D.C. 215, 285 F. 949. It" }, { "docid": "2234182", "title": "", "text": "be deemed to be nationals of a designated enemy country unless the Alien Property Custodian determines that such person is controlled by or acting for or on behalf of (including cloaks for) a designated enemy country or a person within such country or that the national interest of the United States requires that such person be treated as a national of a designated enemy country. It provides that for the purpose of this executive order any determination by the Alien Property Custodian, that any property or interest of any foreign country or national thereof is the property or interest of a designated enemy country or national thereof, shall be final and conclusive as to the power of the Alien Property Custodian to exercise any of the power or authority conferred upon the President by Section 5(b) of the Trad-, ing With the Enemy Act, as amended. Regulations by the Alien Property Custodian, Section 501.1(b) (7 F.R. 2290, March 26, 1942), establishes a committee to be known as the Vested Property Claims Committee to hear claims respecting property vested in the Alien Property Custodian, pursuant to Section 5(b) as amended. Title III of the First War Powers Act, 1941 by its express language amends only “the first sentence of subdivision (b) of section 5 of the Trading With the Enemy Act of October 6, 1917 (40 Stat. 411), as amended.” Had the Congress intended that it should have the effect of an entirely new and separate enactment the Congress would have enacted it as it did the other titles of the Act, as a separate act and not as an amendment. It therefore must be assumed that Congress intended that all the provisions of the Trading With the Enemy Act of 1917 as amended shall be held applicable to this amendment so far as this consistently can be done. The amendment merely extended the power of the President under the Trading With the Enemy Act without any indication that Congress intended to affect the rights or remedies given by the Act to others than enemies or allies of enemies in case" }, { "docid": "1444650", "title": "", "text": "a person claims “any interest, right, or title”, the claimant may sue to establish the “interest, right, title” and, if established, the court shall order the transfer or delivery of the property. Since the plaintiffs allegations disclose that it can not establish any right, title or interest in the shares of Schering stock it can not successfully maintain a suit for the transfer or delivery of the stock under Section 9(a) of the Act. Nor can it successfully maintain a suit against the United States for specific performance of a contract to sell the stock to it because the United States has not consented to be sued under those circumstances. See Iwazo Yamashita v. Clark, D.C., 75 F.Supp. 51, 56. The vesting order of the Custodian did not deprive the plaintiff of any property in violation of due process of law. It merely prevented the performance of the agreement under which the plaintiff sought to acquire the shares. In no event could the Custodian’s knowledge of plaintiff’s agreement to purchase the shares obligate him to sell the vested shares to plaintiff since by Section 12 of the Act, 50 U.S.C.A.Appendix, § 12,- it is provided that “any property sold under this Act, except when sold to the United States, shall be sold only to American citizens, at public sale to the highest bidder, after public advertisement of time and place of sale.” Plaintiff contends that the condition that a license be obtained was imposed only as a formality to assure compliance with Executive Order No. 8389, 12 U.S.C.A. § 95a note, promulgated pursuant to Section 5(b) (1) of the Trading With the Enemy Act, as amended, and that said Order does not require a license to make an agreement with reference to blocked property of a national of - a designated foreign country, but only to make a transfer under such-agreement. This contention can not be sustained. Executive Order No. 8389, 5 F.R. 1400, issued April 10, 1940, ratified by the Joint Resolution of May 7, 1940, 54 Stat. 179, and also ratified by Section-302 of the First War Powers" } ]

[ { "docid": "18367108", "title": "", "text": "operations of the federal government, officials are appropriately called on to make numerous statements concerning persons who may have information concerning them contained in a system of records somewhere within the agency. It borders on the absurd to contend that all officials should have a pansophic recall concerning every record within every system of records within the agency. The court concluded after considering the Privacy Act’s stated purpose and the related Congressional findings that for a disclosure to be covered by § 552a(b), there must have initially been a retrieval from the sys tem of records which was at some point a source of the information. It went on to state that ... Congress had as its purpose the control of the unbridled use of highly sophisticated and centralized information collecting technology ... That problem is not, however, present in this action. On the contrary, there was no utilization whatsoever of such an information system to retrieve the information at issue in this case. It may have been in such a system, but the uncontradicted evidence shows that no retrieval or disclosure from such a system was present. Savarese at 308. It could conceivably be argued that had the defendant in Savarese or in this case read from a record or summarized document specifically retrieved from a system of records, a claim might be cognizable under the Act. However, in the present action (as in Savarese) where only independently acquired information was disclosed, there is no violation of either the letter or the spirit of the Act. As a practical matter, including the kind of disclosure which occurred in the instant case under the protection of the Act would create an administrative nightmare, making it nearly impossible for federal officials to know when communication of information based on personal knowledge might lead to criminal and/or civil liability under the Privacy Act. There is no provision of the Privacy Act which prohibits providing information to a third party without prior consent of the subject which a federal official has acquired from personal observation or knowledge obtained from sources other than a" } ]

[ { "docid": "15394978", "title": "", "text": "may not be predicated on speculation as to what might later be proven.” Id. at 539 n. 5. Thomas urges that even if Jones did not acquire his information from records contained in a system of records, his disclosure nevertheless violated the Privacy Act because he knew or should have known that such records did or would exist. We find this argument untenable. Section 552a(b) of the Privacy Act by its terms contemplates a “system of records” as the direct or indirect source of the information disclosed. The disclosure of information derived solely from independent sources is not prohibited by the statute even though identical information may be contained in an agency system of records. This distinction between information retrieved from a system of records and information independently acquired has been uniformly recognized by courts interpreting the Act. See, e.g., Olberding v. United States Department of Defense, 709 F.2d 621, 622 (6th Cir.1983); Doyle, 670 F.2d at 539; Jackson v. Veterans Administration, 503 F.Supp. 653, 655-57 (N.D.Ill.1980); Savarese v. United States Department of Health, 479 F.Supp. 304, 307-08 (N.D.Ga. 1979), aff’d, 620 F.2d 298 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). “There is no provision of the Privacy Act which prohibits providing information to a third party without prior consent of the subject which a federal official has acquired from personal observation or knowledge obtained from sources other than a record within the meaning of the Privacy Act.” Jackson, 503 F.Supp. at 656. The statutory construction advanced by Thomas is, in our view, inconsistent with congressional intent and objectionable on a practical level as well. We agree with the Olberding court that: “[T]he only disclosure actionable under section 552a(b) is one resulting from a retrieval of the information initially and directly from the record contained in the system of records.... “... The interpretation contended for by plaintiff — that section 552a(b) is violated if agency personnel disclose information they possess by means other than retrieval from a system of records if they know or have reasonable grounds to believe that the information may" }, { "docid": "8097688", "title": "", "text": "record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains 5 U.S.C. § 552a(b) (1994); accord 5 C.F.R. § 297.401 (1996) (specifically applying to personnel records of government employees). However, the Act goes on to enumerate twelve exceptions to this general prohibition. See id. Pippinger, who did hot consent to any disclosure, claims that the IRS unlawfully disclosed his employment records on three different occasions. In analyzing each of these three claims, we must decide whether a record was “disclosed,” and, if so, whether it was disclosed pursuant to an exception enumerated in 5 U.S.C. § 552a(b). Although “disclosure” is not defined in the text of the Privacy Act, the Office of Personnel Management (“OPM”) has defined “disclosure” under the Privacy Act to mean “providing personal review of a record, or a copy thereof, to someone other than the data subject or the data subject’s authorized representative.... ” 5 C.F.R. § 297.102 (1997). Although the OPM’s definition of “disclosure” would appear to be limited to disclosures of the physical records themselves (or mechanical reproductions thereof), this court and other courts have assumed or held that the Privacy Act more broadly prohibits disclosure of information directly or indirectly derived from an agency system of records, even where the physical records are not disclosed. See Wilborn v. Department of Health and Human Servs., 49 F.3d 597, 600 (9th Cir.1995) (“Under a long line of cases interpreting the Privacy Act, courts have agreed that the Act covers more than the mere physical dissemination of records ... [because] the Privacy Act, if it is to be given any force and effect, must be interpreted in a way that does not ‘go against the spirit’ of the Act.”) (citing cases); Kline v. Department of Health and Human Servs., 927 F.2d 522, 524 (10th Cir.1991); Thomas v. United States Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.1983). Accord 5 C.F.R. § 293.406 (1997)" }, { "docid": "12835430", "title": "", "text": "from Dr. Kassel’s file. Defendant Mulvey states that the limited information he provided was “entirely from my memory of the Martin situation, with which I had been involved.” Mulvey Declaration at 11. Moreover, defendants assert that there was no information about the Martin case in Dr. Kassel’s file; records of the Martin case were “purged” from Dr. Kassel’s file pursuant to the arbitrator’s order that resolved the case. As a general rule, courts have held that independent recollections and opinions are not covered by the Privacy Act. See Krowitz v. Department of Agric., 641 F.Supp. 1536, 1545 (W.D.Mich.1986), aff'd 826 F.2d 1063 (6th Cir.1987); Thomas v. United States Dept. of Energy, 719 F.2d 342, 345 (10th Cir.1983); Olberding, supra, 709 F.2d at 622. An exception has been made, however, where an agency official uses the government’s information-collecting methods to acquire information and then discloses that information in an unauthorized fashion without physically retrieving it from the file. Bartel v. FAA, 725 F.2d 1403, 1410 (D.C.Cir.1984). [I]t would hardly seem an ‘intolerable burden’ to restrict an agency official’s discretion to disclose information in a record that he may not have read but that he had a primary role in creating and using, where it was because of that record-related role that he acquired the information in the first place. Id. at 1411. The extent of defendant Mulvey’s participation in the Martin matter has not been made clear. Plaintiff has, however, presented a letter written by Mulvey under date of April 20, 1984, which suggests that Mulvey played a primary role in the Martin incident. See Memorandum in Support of Plaintiff’s Objection to Defendants’ Motion for Summary Judgment and for Reconsideration (hereinafter “Plaintiff’s Memo”), Attachment 6. In that letter, Mulvey, as Chief of Personnel, informed plaintiff of the agency’s intention to comply with the arbitrator’s decision. It appears that Mul vey played a key role in the Martin case. Defendants therefore cannot rely on the retrieval rule to avoid liability for release of that information. Defendants next argue that the Act was not violated because federal regulations required them to release some" }, { "docid": "23268913", "title": "", "text": "are based on concerns similar to those expressed by the legislature. The courts have shown concern with the nature of the record and the adverse effect of disclosure, particularly on employment decisions, in determining whether the record warranted the Act’s protections. These decisions concerning the “system of records” requirement thus also conflict with the majority’s failure to assess whether this record was “about” Unt by noting the real effect that this letter’s disclosure had upon Unt. In Chapman v. NASA, 682 F.2d 526 (5th Cir.1982), cert. denied, — U.S.-, 105 S.Ct. 517, 83 L.Ed.2d 406 (1984), NASA discharged Chapman. Chapman’s immediate supervisor kept notes about Chapman, his job performance, and summaries of meetings, which were ultimately placed in Chapman’s administrative file. The court held that these memos were subject to the Privacy Act. In distinguishing between private memory-refreshers, which are not subject to the Act, and records, which are, the court held: “[W]hen notes bear negatively on a worker’s employment status or situation, they must be handled in a manner consistent with the letter and spirit of the Privacy Act.” 682 F.2d at 529. The notes on Chapman, like the letter from Unt, “played a part in [his] discharge.” 682 F.2d at 527. Thus, When Phinney tendered his personal notes to Hall, for use by NASA in proceedings looking to the discharge of Chapman, the private aspect of the notes evanesced and they became subject to the requirements of the Privacy Act. 682 F.2d at 529. The evil of disclosure of a communication originally intended to be private which then adversely affects the complainant’s employment, upon which the Chapman court based its decision, is present in Unt’s case. His letter, like the Chapman notes, falls within the Privacy Act’s protections. In Olberding v. United States Department of Defense, Department of the Army, 709 F.2d 621 (8th Cir.1983), army officers disclosed that Olberding had undergone psychiatric testing and that no disorders or illness had been found. The court found no violation of the Privacy Act, because the disclosed information was not disclosure “resulting from a retrieval of the information initially and" }, { "docid": "8097690", "title": "", "text": "(“Disclosure of information from this file system shall be made only as permitted by the Privacy Act ....”) (emphasis added). As the Wilborn court explained: the Privacy Act applies to a situation where an agency official uses the government’s sophisticated information collecting methods to acquire personal information for inclusion in a record, and then discloses that information in an unauthorized fashion without actually physically retrieving it from the record system. Id. at 601 (quoting Bartel v. FAA, 725 F.2d 1403, 1410 (D.C.Cir.1984)) (emphasis in Wilborn) (internal punctuation marks omitted). The courts’ broad interpretation of the Privacy Act’s prohibition against disclosure is clearly consistent with Congressional intent. As the Joint House and Senate Report explained, a primary purpose of 5 U.S.C. § 552a(b) is to: require employees to refrain from disclosing records or personal data in them, within the agency other than to officers or employees who have a need for such record or data in the performance of their duties for the agency. This section is designed to prevent the office gossip, interoffice and interbureau leaks of information about persons of interest in the agency or community, or. such actions as the publicizing of information of a sensational or salacious nature or of that detrimental to character or reputation. S.Rep. No. 93-1183, H.R.Rep. No. 93-1416, at 51 (1974) (emphasis added), reprinted in 1974 U.S.C.C.A.N. 6916, 6966, and quoted in part in Parks v. Internal Revenue Serv., 618 F.2d 677, 681 n. 1 (10th Cir.1980). With these broad purposes in mind, we proceed to analyze Pippinger’s claim that improper disclosures were made on three occasions. A. Disclosure to Taylor’s Staff Members As discussed in the “Background” Section, supra, Stephen Taylor began his job as IRS District Director in Cheyenne on June 1, 1993. At that time, Lynn Boak had already been transferred away from Pipping-er’s supervision, and the investigation of Pippinger’s conduct was set to be closed without any action being taken. Taylor had not been present in the office from November 1992 to April 1993, when the events underlying Pip-pinger’s subsequent suspension occurred. Thus, Taylor learned everything he knew about" }, { "docid": "12835428", "title": "", "text": "the Martin incident and when the USA Today article was published, provided information about the Martin case. Details of that incident appeared in a June 16, 1985, Manchester Union Leader article. Defendants first argue that defendant Mulvey did not violate the Act by discussing the Martin case with the Union Leader reporter because Mulvey did nothing more than confirm information which the reporter already had. The Privacy Act only protects against disclosure of previously undisclosed information. FDIC v. Dye, 642 F.2d 833, 836 (5th Cir.1981). Thus, defendants argue that confirming information already known is not a “disclosure” protected by the Act. But the evidence suggests that defendant Mulvey did more than just confirm information. In his declaration, Mulvey admits that he provided dates related to the 1982 discharge. The Union Leader article contains numerous dates of key events relevant to the Martin matter. In addition, as reported in the article, Mulvey told the Union Leader that “there is nothing in [plaintiff’s] personnel file of a derogatory nature,” but “there have been instances of less than desirable relations between Dr. Kassel and his supervisor.” Whether Mulvey did more than merely confirm information is thus a question best left to be resolved by the trier of fact. Defendants next argue that Mulvey did not violate the Act because Dr. Kassel’s personnel file was not the source of the disclosed information. The purpose of the Privacy Act’s nondisclosure provision “is to preclude a system of records from serving as the source of personal information about a person that is then disclosed without the person's prior consent.” Olberding v. United States Dept. of Defense, 564 F.Supp. 907, 913 (S.D.Iowa 1982), aff'd 709 F.2d 621 (8th Cir.1983). Only information retrieved from a system of records is protected from disclosure under the Privacy Act. Saverese v. United States Dept. of HEW, 479 F.Supp. 304, 308 (N.D.Ga.1979), aff'd 620 F.2d 298 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed. 2d 801 (1981); Olberding, supra, 709 F.2d at 622. Defendants argue that none of the information they disclosed about the Martin case was retrieved" }, { "docid": "20429115", "title": "", "text": "adverse impact resulted from the disclosure; and (4) the agency’s disclosure was willful or intentional.” Krieger v. U.S. Dept. of Justice, 529 F.Supp.2d 29, 41 (D.D.C.2008). In general, “liability for nonconsensual disclosures is limited by the ‘rule of retrieval,’ which requires that the information disclosed be ‘directly or indirectly retrieved from a system of records.’ ” Id. at 47 (quoting Fisher v. Nat’l Inst. of Health, et al., 934 F.Supp. 464, 473 (D.D.C.1996), aff'd without opinion, 107 F.3d 922, 1996 WL 734079 (D.C.Cir.1996)). “ ‘[I]nformation derived solely from independent sources is not prohibited by the statute even though identical information may be contained in an agency system of records.’ ” Id. (quoting Fisher, 934 F.Supp. at 473 (quoting Thomas v. United States Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.1983)). Armstrong adduced no evidence that the information in the letters came directly from records contained within a system of records. As a result, the theory of the plaintiffs case is essentially: (1) that Thompson’s written anonymous complaint to TIGTA became a protected record once she sent it, so that she herself was prohibited from revealing its contents; and, (2) that the information in the letters was so detailed and specific that Thompson must have obtained it — perforce, res ipsa loquitur — from protected records. In some instances, circumstantial evidence alone can support a finding that a disclosure came from a record. For example, in Doe v. U.S. Postal Service, 317 F.3d 339, 342-43 (D.C.Cir.2003), the panel found enough evidence to survive summary judgment in plaintiffs showing (I) that highly personal information included on a FLMA form was spread around shortly after the plaintiff submitted the form, and (ii) that the alleged disclosing party routinely reviewed such forms. The D.C. Circuit has also treated the retrieval rule more flexibly when the record in question was created by the party who disclosed it. Thus, the Privacy Act can be violated in the “peculiar” circumstance of “disclosure by an agency official of his official determination made on the basis of an investigation which generated a protected personnel record” even when it" }, { "docid": "15394977", "title": "", "text": "S.Ct. 267, 62 L.Ed.2d 184 (1979)). In this case, the Department’s motion for summary judgment was supported by a declaration under penalty of perjury from James P. Crane, stating that all relevant records pertaining to Thomas were maintained in Albuquerque and that Jones had never had access to any such records. Crane’s declaration also establishes that Jones was present during initial discussions of Thomas’ behavior and that Crane orally directed Jones to have Thomas report to Albuquerque for psychiatric evaluation. Thomas offered no counter affidavit or other evidence refuting Crane’s declaration. Under the circumstances, the district court was fully justified in concluding that the information Jones disclosed on September 15 was derived from independent knowledge and not from an agency system of records. Cf. Doyle v. Behan, 670 F.2d 535, 538-39 (5th Cir.1982). Thomas was obligated to come forward with evidence indicating the existence of a triable issue of fact as to the source of Jones’ disclosure. The unsupported allegations contained in his pleadings and briefs were insufficient to meet this burden. “A genuine dispute may not be predicated on speculation as to what might later be proven.” Id. at 539 n. 5. Thomas urges that even if Jones did not acquire his information from records contained in a system of records, his disclosure nevertheless violated the Privacy Act because he knew or should have known that such records did or would exist. We find this argument untenable. Section 552a(b) of the Privacy Act by its terms contemplates a “system of records” as the direct or indirect source of the information disclosed. The disclosure of information derived solely from independent sources is not prohibited by the statute even though identical information may be contained in an agency system of records. This distinction between information retrieved from a system of records and information independently acquired has been uniformly recognized by courts interpreting the Act. See, e.g., Olberding v. United States Department of Defense, 709 F.2d 621, 622 (6th Cir.1983); Doyle, 670 F.2d at 539; Jackson v. Veterans Administration, 503 F.Supp. 653, 655-57 (N.D.Ill.1980); Savarese v. United States Department of Health, 479" }, { "docid": "23268914", "title": "", "text": "spirit of the Privacy Act.” 682 F.2d at 529. The notes on Chapman, like the letter from Unt, “played a part in [his] discharge.” 682 F.2d at 527. Thus, When Phinney tendered his personal notes to Hall, for use by NASA in proceedings looking to the discharge of Chapman, the private aspect of the notes evanesced and they became subject to the requirements of the Privacy Act. 682 F.2d at 529. The evil of disclosure of a communication originally intended to be private which then adversely affects the complainant’s employment, upon which the Chapman court based its decision, is present in Unt’s case. His letter, like the Chapman notes, falls within the Privacy Act’s protections. In Olberding v. United States Department of Defense, Department of the Army, 709 F.2d 621 (8th Cir.1983), army officers disclosed that Olberding had undergone psychiatric testing and that no disorders or illness had been found. The court found no violation of the Privacy Act, because the disclosed information was not disclosure “resulting from a retrieval of the information initially and directly from the record contained in the system of records.” 709 F.2d at 622 (emphasis supplied). Rather, the information was retrieved from “the personal knowledge of the individual.” Id. Thus, the court’s emphasis in denying an actionable Privacy Act claim was upon the retrievability. Unt’s letter was physically retrieved from the briefcase in which it was carried, and turned over to The Aerospace Corp. The evil of retrieval from stored files, with which the Oblerding court expressed concern, is thus present in Unt’s case. Cf. King v. Califano, 471 F.Supp. 180 (D.D.C. 1979) (personal opinion disclosed from individual’s memory not a disclosure of a record within meaning of Privacy Act); Doyle v. Behan, 670 F.2d 535 (5th Cir.1982) (same). In Boyd v. Secretary of the Navy, 709 F.2d 684 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984), the Navy employed Boyd. Boyd claimed that the Navy refused him access to his own files, destroyed memoranda to which he should have been granted access, and failed to maintain an accurate" }, { "docid": "11359990", "title": "", "text": "that follow, the Court finds that none of Fadely’s alleged disclosures constitutes a violation of the Privacy Act. The Privacy Act “does not prohibit all nonconsensual disclosures of information found in an individual’s records.” Mulhern v. Gates, 2007 WL 4239911 at *5, 525 F.Supp.2d 174, 182 (D.D.C.2007). Instead, liability for non-consensual disclosures is limited by the “rule of retrieval,” which requires that the information disclosed be “directly or indirectly retrieved from a system of records.” Fisher v. Nat’l Inst of Health, et al., 934 F.Supp. 464, 473 (D.D.C.1996), aff'd without opinion, 107 F.3d 922, 1996 WL 734079 (D.C.Cir.1996). “ ‘Conformation derived solely from independent sources is not prohibited by the statute even though identical information may be contained in an agency system of records.’ ” Id. (quoting Thomas v. United States Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.1983)). Accordingly, application of the rule of retrieval means, in practical effect, that “even if an agency official discloses information that exists in the agency’s records, the disclosure is rarely actionable unless the official physically retrieved the information from those records. If the official’s knowledge of the disclosed information derives from sources that are not protected “records,” then the disclosure rarely implicates the Privacy Act.” Mulhern, 2007 WL 4239911 at *5, 525 F.Supp.2d at 182. In the present matter, Fadely indicates that she “has never seen nor obtained any information from” Krieger’s OPF, and could not have, therefore, disclosed information concerning its contents. Fadely Decl. ¶ 8. Instead, Fadely’s knowledge of Krieger’s participation in the Delta trial, his departure date, and her own firsthand impressions of the quality of his work, were derived from sources having nothing to do with his OPF. As Magistrate Judge Facciola properly explained in an earlier discovery ruling in this case, Under [the Privacy Act], there is a rule of retrieval, not a rule of coincidence. If there is information in a record, and a federal employee gained that same information from the use of her own senses, the employee’s telling others what she saw or heard does not violate the Privacy Act merely because there" }, { "docid": "8138388", "title": "", "text": "cover disclosure of information merely because the information happens to be contained in the records. The line they draw is that where no statutory exception applies, the Act prohibits nonconsensual disclosure of any information that has been retrieved from a protected record. See, e.g., Thomas v. United States Department of Energy, 719 F.2d 342 (10th Cir.1983); Jackson v. Veterans Administration, 503 F.Supp. 653, 656 (N.D.Ill.1980); Savarese v. United States Department of Health, Education and Welfare, 479 F.Supp. 304, 307 (N.D.Ga. 1979), aff’d mem. sub nom. Savarese v. Harris, 620 F.2d 298 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). The appellees urge that this line would require an affirmance of the dismissal of Bartel’s Privacy Act claim. We find the appellees’ position problematic for two reasons. First, even if we adopted the view that the Act covers only information physically retrieved from a record, there would still be a material issue of fact on the evidence before us as to whether Vincent gained the information disclosed in his letters by reading the ROI. The record of this case is entirely silent as to whether Vincent ever examined the ROI. Rather than specifically assert, by way of affidavits or otherwise, that he did not examine it, the appellees instead argue that Vincent’s letters merely “render ... ‘a con-clusory statement from [his] memory.’ ” Brief for Appellees, at 14 (quoting Doyle v. Behan, 670 F.2d 535, 539 (5th Cir.1982)). The appellees, however, omit from the quoted passage its explicit recognition that the district court in Doyle had found “a system of records had not been utilized ... to gather the information conveyed.” Doyle, 670 F.2d at 639. Here, on the other hand, we know only that Vincent made a determination based on the investigation that Bar-tel should be officially reprimanded. Instead of reprimanding Bartel, who was no longer an FAA employee, he decided the best course of action was to inform those whose files were disclosed of Bartel’s improper conduct, in effect, disclosing a summary of the ROI. We do not know if Vincent ever consulted" }, { "docid": "8097689", "title": "", "text": "data subject’s authorized representative.... ” 5 C.F.R. § 297.102 (1997). Although the OPM’s definition of “disclosure” would appear to be limited to disclosures of the physical records themselves (or mechanical reproductions thereof), this court and other courts have assumed or held that the Privacy Act more broadly prohibits disclosure of information directly or indirectly derived from an agency system of records, even where the physical records are not disclosed. See Wilborn v. Department of Health and Human Servs., 49 F.3d 597, 600 (9th Cir.1995) (“Under a long line of cases interpreting the Privacy Act, courts have agreed that the Act covers more than the mere physical dissemination of records ... [because] the Privacy Act, if it is to be given any force and effect, must be interpreted in a way that does not ‘go against the spirit’ of the Act.”) (citing cases); Kline v. Department of Health and Human Servs., 927 F.2d 522, 524 (10th Cir.1991); Thomas v. United States Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.1983). Accord 5 C.F.R. § 293.406 (1997) (“Disclosure of information from this file system shall be made only as permitted by the Privacy Act ....”) (emphasis added). As the Wilborn court explained: the Privacy Act applies to a situation where an agency official uses the government’s sophisticated information collecting methods to acquire personal information for inclusion in a record, and then discloses that information in an unauthorized fashion without actually physically retrieving it from the record system. Id. at 601 (quoting Bartel v. FAA, 725 F.2d 1403, 1410 (D.C.Cir.1984)) (emphasis in Wilborn) (internal punctuation marks omitted). The courts’ broad interpretation of the Privacy Act’s prohibition against disclosure is clearly consistent with Congressional intent. As the Joint House and Senate Report explained, a primary purpose of 5 U.S.C. § 552a(b) is to: require employees to refrain from disclosing records or personal data in them, within the agency other than to officers or employees who have a need for such record or data in the performance of their duties for the agency. This section is designed to prevent the office gossip, interoffice and interbureau" }, { "docid": "8138393", "title": "", "text": "system of records if they know or have reason to believe that the information may also be found in a record within a system of records — would create an intolerable burden.” Olberding v. United States Department of Defense, 709 F.2d 621, 622 (8th Cir.1983). We assume the “intolerable burden” refers primarily to situations, unlike this one, where information was inadvertently leaked from a record, became part of general office knowledge, and some time later was disclosed purportedly as a matter within the discloser’s personal knowledge. We do not take issue with the importance of either concern in the interpretation of the Act. But, neither do we think those rationales support reading out of the Act’s coverage the situation we may be dealing with here, where an agency official uses the government’s “sophisticated . .. information collecting” methods to acquire personal information for inclusion in a record and then discloses that information in an unauthorized fashion without actually physically retrieving it from the record system. Threats to privacy from the government’s recordkeeping emanate not only from the ease of retrieval, but also from the ease of collection and utilization of vast amounts of personal information. Given this broad lens view of privacy protection which Con gress embraced, the Savarese rationale is consistent with extension of the Act’s prohibition to nonconsensual disclosure of information as closely connected to the “maintenance” of a record as the situation here suggests, even absent physical retrieval from a tangible recording. And, in contrast to disclosures of general office knowledge, it would hardly seem an “intolerable burden” to restrict an agency official’s discretion to disclose information in a record that he may not have read but that he had a primary role in creating and using, where it was because of that record-related role that he acquired the information in the first place. Indeed, a different interpretation would deprive the Act of all meaningful protection of privacy. In this case, the details of Vincent’s precise relationship to the creation and use of the Bartel investigation record are not fully known. The record before the district court" }, { "docid": "8138387", "title": "", "text": "but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or photograph. 5 U.S.C. § 552a(a)(4). It is of course obvious that the letters were not themselves agency records. On the other hand, it is not disputed that the Bartel ROI referred to in the letters is a record subject to the disclosure provisions of the Act. Because we find that under the peculiar circumstances of this case, the letters did in fact communicate sensitive information contained in the ROI — specifically, that Bar-tel’s conduct was the subject of an official agency investigation, that he acted improperly, and that he may have violated the Privacy Act — we conclude that the Act’s disclosure protections may have been triggered. Courts up to now have unanimously agreed that the Act covers more than the mere physical dissemination of records (or copies) but that it does not necessarily cover disclosure of information merely because the information happens to be contained in the records. The line they draw is that where no statutory exception applies, the Act prohibits nonconsensual disclosure of any information that has been retrieved from a protected record. See, e.g., Thomas v. United States Department of Energy, 719 F.2d 342 (10th Cir.1983); Jackson v. Veterans Administration, 503 F.Supp. 653, 656 (N.D.Ill.1980); Savarese v. United States Department of Health, Education and Welfare, 479 F.Supp. 304, 307 (N.D.Ga. 1979), aff’d mem. sub nom. Savarese v. Harris, 620 F.2d 298 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). The appellees urge that this line would require an affirmance of the dismissal of Bartel’s Privacy Act claim. We find the appellees’ position problematic for two reasons. First, even if we adopted the view that the Act covers only information physically retrieved from a record, there would still be a material issue of fact on the evidence before us as to whether Vincent gained the information disclosed in his letters" }, { "docid": "8138392", "title": "", "text": "guideline in other Privacy Act situations. Therefore, despite dicta from other circuits, we decline to rule, in the factual context of this case, that the Act’s coverage is restricted to information directly retrieved from a tangible recording. The most commonly cited dicta of this genre is found in Savarese, 479 F.Supp. 304, and was explicitly premised on the conclusion that: Congress had as its purpose the control of the unbridled use of highly sophisticated and centralized information collecting technology. The capacity of computers and related systems to collect and distribute great masses of personal information clearly poses a threat that the Privacy Act seeks to remedy. That problem is not, however, present in this action. On the contrary, there was no utilization whatsoever of such an information system to retrieve the information at issue in this case. Id. at 308. It was also premised, in part, on the concern that “[t]he interpretation con tended for ... —that section 552a(b) is violated if agency personnel disclose information they possess by means other than retrieval from a system of records if they know or have reason to believe that the information may also be found in a record within a system of records — would create an intolerable burden.” Olberding v. United States Department of Defense, 709 F.2d 621, 622 (8th Cir.1983). We assume the “intolerable burden” refers primarily to situations, unlike this one, where information was inadvertently leaked from a record, became part of general office knowledge, and some time later was disclosed purportedly as a matter within the discloser’s personal knowledge. We do not take issue with the importance of either concern in the interpretation of the Act. But, neither do we think those rationales support reading out of the Act’s coverage the situation we may be dealing with here, where an agency official uses the government’s “sophisticated . .. information collecting” methods to acquire personal information for inclusion in a record and then discloses that information in an unauthorized fashion without actually physically retrieving it from the record system. Threats to privacy from the government’s recordkeeping emanate not only" }, { "docid": "11359989", "title": "", "text": "15, 1990, indicating that Plaintiff resigned before the end of the Delta trial; (3) A DOJ Press Release dated Sept. 1, 1989, indicating that Plaintiff participated in a portion of the Delta trial; and (4) A conversation between Fadely and Adler in 1991, wherein Fadely indicated her “surprise and disappointment” that Adler’s law firm had hired Krieger because she “didn’t have very high regard for [Krieger’s] efforts in connection with cases that she had worked on,” and that Krieger’s role in the Delta trial had been “limited” and primarily related to “a computer study for use as a trial exhibit” in the case. Pl.’s Opp’n to Defs’ Mot. for Summ. J. 9-23 & Ex. 1. Subject to one narrow exception that is discussed below, Krieger must show that Fadely actually retrieved and disclosed information contained in a record maintained within a system of records. Having narrowed the universe of records that fit this description to Krieger’s OPF, Krieger must show that Fadely improperly disclosed information that she actually retrieved from Krieger’s OPF. For the reasons that follow, the Court finds that none of Fadely’s alleged disclosures constitutes a violation of the Privacy Act. The Privacy Act “does not prohibit all nonconsensual disclosures of information found in an individual’s records.” Mulhern v. Gates, 2007 WL 4239911 at *5, 525 F.Supp.2d 174, 182 (D.D.C.2007). Instead, liability for non-consensual disclosures is limited by the “rule of retrieval,” which requires that the information disclosed be “directly or indirectly retrieved from a system of records.” Fisher v. Nat’l Inst of Health, et al., 934 F.Supp. 464, 473 (D.D.C.1996), aff'd without opinion, 107 F.3d 922, 1996 WL 734079 (D.C.Cir.1996). “ ‘Conformation derived solely from independent sources is not prohibited by the statute even though identical information may be contained in an agency system of records.’ ” Id. (quoting Thomas v. United States Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.1983)). Accordingly, application of the rule of retrieval means, in practical effect, that “even if an agency official discloses information that exists in the agency’s records, the disclosure is rarely actionable unless the official physically retrieved" }, { "docid": "20429116", "title": "", "text": "she sent it, so that she herself was prohibited from revealing its contents; and, (2) that the information in the letters was so detailed and specific that Thompson must have obtained it — perforce, res ipsa loquitur — from protected records. In some instances, circumstantial evidence alone can support a finding that a disclosure came from a record. For example, in Doe v. U.S. Postal Service, 317 F.3d 339, 342-43 (D.C.Cir.2003), the panel found enough evidence to survive summary judgment in plaintiffs showing (I) that highly personal information included on a FLMA form was spread around shortly after the plaintiff submitted the form, and (ii) that the alleged disclosing party routinely reviewed such forms. The D.C. Circuit has also treated the retrieval rule more flexibly when the record in question was created by the party who disclosed it. Thus, the Privacy Act can be violated in the “peculiar” circumstance of “disclosure by an agency official of his official determination made on the basis of an investigation which generated a protected personnel record” even when it was unclear whether the disclosed “information [was] directly retrieved from a tangible recording.” Bartel v. Federal Aviation Administration, et al., 725 F.2d 1403, 1408-09 (D.C.Cir.1984), The Bartel panel, however, carefully limited its holding to the facts of that case, Bartel, 725 F.2d at 1409, and the facts of the instant case are easily distinguished: Thompson’s complaint initiated the investigation but was not the product of it; Thompson was never a member of the investigatory team; and her complaint was not a “determination” by a supervising official. Bartel does not render Thompson’s disclosure of information in her complaint a Privacy Act violation (if, indeed, that is what she did). The record of this case establishes nothing more than that Thompson collated what she knew from her' own complaint, from her own observations and speculation and those of others, from the rumor-mill that apparently goes virtually unchecked at TIGTA, and from other non-covered sources. Thompson denies having accessed or viewed any of the plaintiffs personnel documents or records connected to his investigation documents and claims to have" }, { "docid": "12835429", "title": "", "text": "desirable relations between Dr. Kassel and his supervisor.” Whether Mulvey did more than merely confirm information is thus a question best left to be resolved by the trier of fact. Defendants next argue that Mulvey did not violate the Act because Dr. Kassel’s personnel file was not the source of the disclosed information. The purpose of the Privacy Act’s nondisclosure provision “is to preclude a system of records from serving as the source of personal information about a person that is then disclosed without the person's prior consent.” Olberding v. United States Dept. of Defense, 564 F.Supp. 907, 913 (S.D.Iowa 1982), aff'd 709 F.2d 621 (8th Cir.1983). Only information retrieved from a system of records is protected from disclosure under the Privacy Act. Saverese v. United States Dept. of HEW, 479 F.Supp. 304, 308 (N.D.Ga.1979), aff'd 620 F.2d 298 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed. 2d 801 (1981); Olberding, supra, 709 F.2d at 622. Defendants argue that none of the information they disclosed about the Martin case was retrieved from Dr. Kassel’s file. Defendant Mulvey states that the limited information he provided was “entirely from my memory of the Martin situation, with which I had been involved.” Mulvey Declaration at 11. Moreover, defendants assert that there was no information about the Martin case in Dr. Kassel’s file; records of the Martin case were “purged” from Dr. Kassel’s file pursuant to the arbitrator’s order that resolved the case. As a general rule, courts have held that independent recollections and opinions are not covered by the Privacy Act. See Krowitz v. Department of Agric., 641 F.Supp. 1536, 1545 (W.D.Mich.1986), aff'd 826 F.2d 1063 (6th Cir.1987); Thomas v. United States Dept. of Energy, 719 F.2d 342, 345 (10th Cir.1983); Olberding, supra, 709 F.2d at 622. An exception has been made, however, where an agency official uses the government’s information-collecting methods to acquire information and then discloses that information in an unauthorized fashion without physically retrieving it from the file. Bartel v. FAA, 725 F.2d 1403, 1410 (D.C.Cir.1984). [I]t would hardly seem an ‘intolerable burden’ to restrict an" }, { "docid": "20429114", "title": "", "text": "the six letters sent to USDA, alleging that each of them was a violation of § 552a of the Privacy Act. Count 7 is a claim of libel, against Davis. Counts 8-12 allege that TIGTA is responsible under the Federal Tort Claims Act for the acts of its employees for intentional infliction of emotional distress, negligent infliction of emotional distress, false light, invasion of privacy, and intentional interference with prospective contractual relationships. 1. The Privacy Act Claims Subject to exceptions that are not implicated here, under 5 U.S.C. § 552a(b) “[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” To succeed on a damages suit for unlawful disclosure a plaintiff must therefore show that: “(1) the information in question is a ‘record’ contained within ‘a system of records;’ (2) the agency improperly ‘disclosed’ the information; (3) an adverse impact resulted from the disclosure; and (4) the agency’s disclosure was willful or intentional.” Krieger v. U.S. Dept. of Justice, 529 F.Supp.2d 29, 41 (D.D.C.2008). In general, “liability for nonconsensual disclosures is limited by the ‘rule of retrieval,’ which requires that the information disclosed be ‘directly or indirectly retrieved from a system of records.’ ” Id. at 47 (quoting Fisher v. Nat’l Inst. of Health, et al., 934 F.Supp. 464, 473 (D.D.C.1996), aff'd without opinion, 107 F.3d 922, 1996 WL 734079 (D.C.Cir.1996)). “ ‘[I]nformation derived solely from independent sources is not prohibited by the statute even though identical information may be contained in an agency system of records.’ ” Id. (quoting Fisher, 934 F.Supp. at 473 (quoting Thomas v. United States Dep’t of Energy, 719 F.2d 342, 345 (10th Cir.1983)). Armstrong adduced no evidence that the information in the letters came directly from records contained within a system of records. As a result, the theory of the plaintiffs case is essentially: (1) that Thompson’s written anonymous complaint to TIGTA became a protected record once" }, { "docid": "15394979", "title": "", "text": "F.Supp. 304, 307-08 (N.D.Ga. 1979), aff’d, 620 F.2d 298 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). “There is no provision of the Privacy Act which prohibits providing information to a third party without prior consent of the subject which a federal official has acquired from personal observation or knowledge obtained from sources other than a record within the meaning of the Privacy Act.” Jackson, 503 F.Supp. at 656. The statutory construction advanced by Thomas is, in our view, inconsistent with congressional intent and objectionable on a practical level as well. We agree with the Olberding court that: “[T]he only disclosure actionable under section 552a(b) is one resulting from a retrieval of the information initially and directly from the record contained in the system of records.... “... The interpretation contended for by plaintiff — that section 552a(b) is violated if agency personnel disclose information they possess by means other than retrieval from a system of records if they know or have reasonable grounds to believe that the information may also be found in a record contained in a system of records — would create an intolerable burden and would expand the Privacy Act beyond the limits of its purpose, which is to preclude a system of records from serving as the source of personal information about a person that is then disclosed without the person’s prior consent.” 709 F.2d at 622 (quoting Olberding v. United States Department of Defense, 564 F.Supp. 907, 913 (S.D.Iowa 1982)) (emphasis in original). This view accords with the legislative history of the Privacy Act, which indicates that Congress was concerned predominantly with the increasing use of computers and sophisticated information systems and the potential abuse of such technology. See Savarese, 479 F.Supp. at 308. Congress passed the Act “to protect the privacy of individuals identified in information sys terns maintained by Federal agencies” by preventing the “misuse” of that information. Privacy Act of 1974, Pub.L. No. 93-579, § 2, 88 Stat. 1896, reprinted in 1974 U.S.Code Cong. & Ad.News 2177-78 (congressional findings and statement of purpose); see generally S.Rep." } ]

[ { "docid": "15734075", "title": "", "text": "v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). This Court hereinafter determines that a municipality is not liable under this theory. Bivens is concededly a novel ease. The Supreme Court there held that damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials. The case was not decided on the basis of a federal jurisdictional issue, but, rather, on the basis that the United States Constitution itself gives rise to a cause of action. In the instant case, plaintiff has alleged jurisdiction under 28 U.S.C. § 1343. For the purposes of this discussion this Court will assume arguendo that the plaintiff has also implicitly alleged jurisdiction pursuant to 28 U.S.C. § 1331. It seems reasonably clear that Bivens may have sought to impose liability against federal officials for the same acts which Congress has heretofore imposed liability against state officials. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. at 427-431, 91 S.Ct. 1999 (Mr. Justice Black, dissenting); see 42 U.S.C. § 1983. However, in reaching this holding, the Court reasoned in such a manner that it may be argued, notwithstanding the ratio decidendi of the case, that Bivens recognizes a cause of action for damages for violation of any constitutionally protected interest. Indeed, the Court of Appeals for the Third Circuit has so construed Bivens. United States ex rel. Moore v. Koelzer, 457 F.2d 892, 894 (3d Cir. 1972) (cause of action found in Fifth Amendment). This Court now proceeds in its analysis and assumes arguendo that Bivens does recognize a cause of action for damages for violation of constitutionally protected interests. In Bivens the defendants were federal officials. In the instant case the defendant Brantley was allegedly acting under color of state law. Therefore, it may be argued that Bivens is distinguishable and inapplicable. However, this distinction is not persuasive since, for example, the Fourth Amendment is applicable to the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684," } ]

[ { "docid": "2375251", "title": "", "text": "whether to adopt it because we believe the issue is more than adequately resolved by the second argument: that it would be an unwise use of judicial power to accede to the demanded extension. The Court in Bivens acknowledged that there might be “special factors counselling hesitation” when the courts infer a cause of action directly from the Constitution “in the absence of affirmative action by Congress.” 403 U.S. at 396, 91 S.Ct. at 2005. We find several such factors in this case. a. Respect for the proper role of Congress. What kept the Bivens dissenters from joining with the rest of the Court was also a major cautionary signal to both Mr. Justice Harlan and the majority. All recognized that the implementation of constitutional guarantees is primarily a legislative task, as contrasted with the interpretive responsibilities of the judiciary. See Comment, Implying a Damage Remedy Against Municipalities Directly Under the Fourteenth Amendment: Congressional Action as an Obstacle to Extension of the Bivens Doctrine, 36 Md.L.Rev. 123, 145-46 (1976) [hereinafter referred to as Congressional Action ]. The majority in Bivens, however, found no legislative scheme implementing the Fourth Amendment by allowing recovery against federal officers for their constitutional violations. The Court thus found itself in a field into which Congress had not entered, and in that setting felt free to provide an appropriate remedy. Although Congress may have been relatively inactive in legislative protection for constitutional violations by federal officers, it has moved rather spectacularly into the parallel field involving state action. This is illustrated not only by section 1983 and other 19th Century civil-rights statutes, but also by such complex and comprehensive legislation as the Civil Rights Act of 1964 and its subsequent amendments. In spite of its active awareness of its power to enforce the Fourteenth Amendment against state and local governments, however, Congress has deliberately chosen to exclude vicarious liability against municipalities from the scope of section 1983. Indeed, even after Monroe held that municipalities were totally protected from section 1983 liability, Congress resisted attempts to counter the effects of that decision by amending the statute, see" }, { "docid": "9871450", "title": "", "text": "as beyond doubt. Arant v. Lane, 245 U.S. 166, 170, 38 S.Ct. 94, 62 L.Ed. 223 (1917). This understanding is echoed by Professor Moore in Moore’s Federal Practice, Vol. I (1977), p. 665, where he states “In most instances, on the other hand [referring to Bivens], the Constitution unaided by statute does not create rights against private parties. On the whole case, as previously indicated, we are of opinion there is no implied cause of action against the municipality under the Fourteenth Amendment, with jurisdiction under § 1331, for the acts of one of its employees. We give weight to the fact that the amendment itself authorizes action by Congress, which Congress has exercised in § 1983, and which, even under Monell, does not permit untrammeled municipal liability. We also give weight to the reasoning that the granting of money damages against a municipality in the absence of legislative authorization actively involves the judiciary in policy decisions relating to the allocation of limited resources which in certain instances may raise serious questions concerning the enforceability of a court’s mandate. See Dellinger, p. 1533. Also taken into account is the fact that the plaintiff here has a remedy, perhaps not perfect, but that which was contemplated by Congress. In our case, affirmative action by Congress should counsel hesitation. Bivens, 403 U.S. p. 396, 91 S.Ct. 1999. In contrast to Bivens, which did not deal “with a question of ‘federal fiscal policy’ ” by allowing a suit against federal agents, we do deal with a question of State fiscal policy should we permit a suit against a municipal corporation based on respondeat superior and not subject to the limitations of § 1983, the only source for satisfaction of a judgment against it being the taxpayers who furnish the money to the municipality. Again, in contrast to Bivens which had no formulation of congressional policy as to whether the availability of money damages was necessary to enforce the Fourth Amendment, we have here a congressional policy that while money damages against an individual may be necessary to enforce the Fourteenth Amendment, they are" }, { "docid": "13210791", "title": "", "text": "law for damages awarded for infringement of any person’s civil rights”. Turpin contends that the provision effectively allows a suit against the City under a theory of respondeat superior. . Since Turpin’s claim is not wholly frivolous, we clearly have jurisdiction under 28 U.S.C. § 1331 to determine whether he has stated a valid cause of action. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). . Many have questioned Monroe’s analysis of § 1983’s legislative history insofar as it purports to describe Congress’s attitude toward various forms of municipal liability. See, e.g., Comment, 57 Calif.L.Rev. 1142, 1164-70 (1969); Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 945-51 (1976) [hereinafter cited as Damage Remedies]. . The scope of § 1983 has been limited in a variety of other ways. For example, supervisory officials cannot be sued without a showing that their behavior played a role in the malfeasance of their subordinates, see Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), while officials generally will be accorded “good faith” immunity, see Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). See generally McCormack, Federalism and Section 1983: Limitations on Judicial Enforcement of Constitutional Provisions, 60 Va. L.Rev. 1 (1974). . This growing trend has not gone unnoticed in the literature. See, e.g., Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 Nw.U.L.Rev. 770 (1975); Comment, Implying a Damage Remedy Against Municipalities Directly Under the Fourteenth Amendment: Congressional Action as an Obstacle to Extension of the Bivens Doctrine, 36 Md.L.Rev. 123 (1976); Note, Municipal Liability in Damages for Violations of Constitutional Rights— Fashioning a Cause of Action Directly from the Constitution — Brault v. Town of Milton, 7 Conn.L.Rev. 552 (1975). . See Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1535 & n.20 (1972). The Federal Tort Claims Act was subsequently amended, effective March 16, 1974, to allow suits for claims arising out of, inter alia, assault, battery, and false arrest. Pub.L. 93-253, § 2, 88 Stat. 50, codified" }, { "docid": "840914", "title": "", "text": "my view, judicial recognition of actions for damages arising directly under the Constitution would subvert this legislative scheme by allowing bypass of the limitations imposed by Congress on private actions under these Acts. It is interesting to note one commentator’s suggestion that— “The Bivens decision leads to the rather striking conclusion that section 1983 may simply be unnecessary: money damages, as well as equitable relief, may be obtained in suits founded directly upon the Constitution.” Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1559 (1972) (footnote omitted). Of course, § 1983 would not thereby be rendered totally superfluous; under present jurisdictional statutes it would retain significance as to claims failing to meet the $10,000 prerequisite to general federal question jurisdiction under 28 U.S.C. § 1331(a). This would mean, then, that the municipal exclusion from liability under § 1983 would serve only to exclude municipalities from claims under $10,000, but not from those in excess of that amount. Additionally, since alleging the amount in controversy is seldom a significant problem in civil rights actions “[wjhat appears to be the broad substantive significance of Monroe [and other cases establishing the exclusion would] then [be] reduced, in many cases, to a mere pleading rule.” Dahl v. City of Palo Alto, 372 F.Supp. 647, 650 (N.D.Cal.1974) (footnote omitted). I agree with Judge Ditter (Pitrone, supra, 420 F.Supp. at 1390) that this interpretation does not comport with the legislative intent manifested by Congress. Counsel have suggested that the municipal exclusion from liability in § 1983 should not be accorded great significance because it is based upon nineteenth century legal misconceptions as to the power of Congress to extend liability to municipalities and is derived merely from a Supreme Court interpretation of an ambiguous legislative history. Whether or not Congress’ reasoñs for excluding municipalities from § 1983 liability remain valid is immaterial. The municipal exclusion must be accorded the same significance as any other provision of law whatever the reason for its enactment. Cf. Moor, supra, 411 U.S. at 709, 93 S.Ct. 1785. The Supreme Court’s interpretation of § 1983’s legislative" }, { "docid": "12161390", "title": "", "text": "reluctance stems from many concerns, not the least of which is our awareness that the framers of the Constitution saw fit to entrust the job of legislating to the Congress. The results in Bivens and Passman were necessitated primarily by the absence of alternative remedies. In each case, there simply was no other means of seeking redress for flagrant violations of the plaintiff’s constitutional rights. With respect to the instant case, we note that Congress has provided a means of seeking relief against state officials who violate the Constitution. In pertinent part, 42 U.S.C.A. § 1983 states that any person, acting under color of state law, who deprives a United States citizen “of any rights, privileges, or immunities secured by the Constitution” shall be liable to such citizen. Id. at 382-83. Plaintiffs there had failed to bring a § 1983 claim, and there was no reason to assume that a § 1983 claim would have been unavailing to them; hence, we affirmed the district court’s dismissal of plaintiffs’ implied cause of action. In the instant case, however, appellants did bring a § 1983 claim, based on respondeat superior, which is effectively foreclosed by Monell. Thus, it is at least arguable that a Bivens -type action is appropriate here even though it was not in Hearth. . We are aware that several commentators have written in support of imposing respondeat superior liability in a Bivens -type action. See Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976); Hundt, Suing Municipalities Directly under the Fourteenth Amendment, 70 Nw.U. L.Rev. 770, 780-82 (1975); Note, A Federal Cause of Action Against a Municipality for Fourth Amendment Violations by its Agents, 42 Geo.Wash.L.Rev. 850, 853, 861 (1974). Each of these articles suggests that Bivens does not preclude respondeat superior liability; in fact, each argues that the imposition of such liability would further the interest served in Bivens. See also Comment, Section 1983 Municipal Liability and the Doctrine of Respondeat Superior, 46 U.Chi.L.Rev. 935, 952 n. 79 (1979). We also recognize that the absence of respondeat superior liability will foreclose some victims of" }, { "docid": "23544043", "title": "", "text": "in dismissing his Bivens cause of action requesting the court to imply a cause of action directly under the first amendment of the United States Constitution and finding that plaintiff had administrative remedies under both the ERA and the CSRA. Defendants counter that the district court correctly determined that plaintiff had comprehensive administrative remedies available under both the ERA and the CSRA to challenge the conduct complained of and that it would therefore be inappropriate for the district court to provide Bivens remedies in this instance. We find defendants’ argument persuasive. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court established that victims of a constitutional violation committed by a federal agent may recover damages against a federal official despite the absence of a statute conferring the right to recover damages. While Bivens doctrine has been greatly expanded, a Bivens cause of action will not be implied if the defendant shows either “special factors counselling hesitation in the absence of affirmative action by Congress,” Bivens, 403 U.S. at 396, 91 S.Ct. at 2005, or that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the constitution and viewed as equally effective. Id. at 397, 91 S.Ct. at 2005. In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court held that it would be inappropriate to supplement the regulatory scheme with new judicial remedies when a federal employee asserts a work-related claim that is governed by comprehensive provisions which afford the employee meaningful remedies against the United States. 462 U.S. at 368, 103 S.Ct. at 2406. The plaintiff in Bush was an engineer who worked for the National Aeronautics and Space Administration (“NASA”). After the plaintiff made several statements to the news media regarding the agency’s waste of taxpayers’ money, he was demoted. He claimed that his constitutional rights were violated and his civil service administrative remedies were not sufficient to redress the wrongs he allegedly suffered. In" }, { "docid": "21883773", "title": "", "text": "seriously question the validity of the district court’s holding that as a municipality the Town of Milton cannot be held in damages under § 1983, Monroe v. Pape, supra. However, they seek to avoid the impact of that decision by urging that, regardless of § 1983, their damage suit must be upheld on the ground that it is derived directly from the Fourteenth Amendment itself. In support of the validity of such a constitutionally-based claim they cite Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and the concurring opinions of Justices Brennan and Marshall in City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); see also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L. Rev. 1532, 1558 (1972). The Town, on the other hand, while not abandoning any of the other grounds urged by it below, contends that municipalities are immune from suits for damages, whether based on § 1983 or directly on the Fourteenth Amendment, and that in any event the Braults are precluded on grounds of res judicata from pursuing their present damage claims since they chose, following the Vermont Supreme Court’s dissolution of the injunction against them, to have their claim adjudicated by the state courts, where the Town’s immunity was upheld. Interesting as these questions are, we find it unnecessary to resolve them for the reason that the complaint fails to state a claim entitling the plaintiffs to relief, regardless of the theory upon which the action is based. Until a plaintiff has set forth a short and simple statement of facts indicating some plausible basis for relief, any discussion of other possible barriers on his road to relief is superfluous. Assuming that a suit for damages can be founded directly on the Fourteenth Amendment, a question we do not here decide, the allegations made by the Braults, even given the liberal construction mandated by the principles underlying “notice pleading,” do not demonstrate any basis for a claim that their rights under" }, { "docid": "2375250", "title": "", "text": "922, 935-39 (1976). Since we are not required to allow Molina his cause of action against the city, the question becomes whether we should do so. Specifically, the issue is whether the difference between this case and Bivens either precludes or counsels against the exercise of our judicial discretion to provide a damages remedy to redress any constitutional violation that may have been caused by the city. 2. Prudential considerations as an obstacle to the extension of Bivens to municipalities. Two separate, though related, arguments have been advanced against the imposition of Bivens liability on municipalities. The first, relying on the implication in Bivens that congressional action might have precluded the result in that case, 403 U.S. at 397, 91 S.Ct. 1999, is that by enacting 42 U.S.C. § 1983 Congress has supplied the exclusive remedy for constitutional violations committed under color of state authority. Thus, the argument goes, we would be precluded from extending Bivens to municipalities. While we recognize the logic and persuasive reasoning of this position, we find it unnecessary to decide whether to adopt it because we believe the issue is more than adequately resolved by the second argument: that it would be an unwise use of judicial power to accede to the demanded extension. The Court in Bivens acknowledged that there might be “special factors counselling hesitation” when the courts infer a cause of action directly from the Constitution “in the absence of affirmative action by Congress.” 403 U.S. at 396, 91 S.Ct. at 2005. We find several such factors in this case. a. Respect for the proper role of Congress. What kept the Bivens dissenters from joining with the rest of the Court was also a major cautionary signal to both Mr. Justice Harlan and the majority. All recognized that the implementation of constitutional guarantees is primarily a legislative task, as contrasted with the interpretive responsibilities of the judiciary. See Comment, Implying a Damage Remedy Against Municipalities Directly Under the Fourteenth Amendment: Congressional Action as an Obstacle to Extension of the Bivens Doctrine, 36 Md.L.Rev. 123, 145-46 (1976) [hereinafter referred to as Congressional Action" }, { "docid": "23160898", "title": "", "text": "and District of Columbia Circuits have reserved decision on this question. See, e. g., Fine v. City of New York, 529 F.2d 70, 76 n.13 (2d Cir. 1975); Brault v. Town of Milton, 527 F.2d 730, 738 (2d Cir. 1975) (en banc); Aldinger v. Howard, 513 F.2d 1257, 1257 n.1 (9th Cir. 1975); Apton v. Wilson, 165 U.S.App.D.C. 22, 29, 506 F.2d 83, 96 (1974). The Fourth Circuit, like this Circuit, has apparently decided only that § 1331 jurisdiction exists. Cox v. Stanton, 529 F.2d 47, 50-51 (4th Cir. 1975). The district court opinions on this question are far too numerous to list here. Compilations of those cases are included in the articles listed below. Among the very recent cases not listed in those articles are: Crosley v. Davis, 426 F.Supp. 389 (E.D.Pa.1977); Raffety v. Prince George’s County, 423 F.Supp. 1045 (D.Md.1976); Livingood v. Townsend, 422 F.Supp. 24 (D.Minn.1976); Pitrone v. Mercadante, 420 F.Supp. 1384 (E.D.Pa.1976). The commentary on this question is extensive. See, e. g., Comment, Implying a Damage Remedy Against Municipalities Directly Under the Fourteenth Amendment: Congressional Action as an Obstacle to Extension of the Bivens Doctrine, 36 Md.L.Rev. 123 (1976); Note, Remedies for Constitutional Torts: “Special Factors Counselling Hesitation,” 9 Ind.L.Rev. 441 (1976); Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976); Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 Nw.U.L.Rev. 770 (1975); Note, Municipal Liability in Damages for Violations of Constitutional Rights — Fashioning a Cause of Action Directly from the Constitution—Brault v. Town of Milton, 7 Conn.L.Rev. 552 (1975). See also Monaghan, The Supreme Court, 1974 Term—Forward: Constitutional Common Law, 89 Harv.L.Rev. 1 (1975); Dellinger, Of Rights and Remedies: The Constitution As a Sword, 85 Harv.L.Rev. 1532 (1972); Hill, Constitutional Remedies, 69 Colum.L.Rev. 1110 (1969); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U.Pa.L.Rev. 1 (1968). . For an account of the various skirmishes in this campaign, see Hundt, supra note 20, at 778-79. . See note 20 supra." }, { "docid": "5229008", "title": "", "text": "such suits would render meaningless the immunity enjoyed by municipalities under § 1983, we might find this argument more persuasive. This is not in fact the case, however, for § 1331, with its amount in controversy requirement, would preserve the municipality’s § 1983 immunity as to actions not involving this minimum sum; suits based on § 1983, it will be remembered, see supra, need not satisfy an amount in controversy requirement. Bell v. Hood [327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939] and Bivens itself, moreover, caution against assuming that Congress’ exemption for municipalities under § 1983 informed its efforts four years later in establishing federal question jurisdiction. For while Congress placed suits against federal officials beyond the scope of § 1983 with no less — and, indeed, probably far more— clarity than it proscribed suits against municipalities, the Court in these .two cases confirmed that § 1331 vested federal jurisdiction over civil rights actions against federal officers. We reject the view, therefore, that municipalities enjoy any special status which would immunize them from suits to redress deprivations of federal constitutional rights. See City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (concur ring opinion of Brennan & Marshall, JJ.); Dupree v. City of Chattanooga, 362 F.Supp. 1136, 1138-39 (E.D.Tenn.1973); Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1558-59 (1972). “The plaintiffs have stated a cause of action under the Due Process Clause of the Fourteenth Amendment for which relief may be granted. We therefore reverse the district court’s dismissal of the complaint and remand for trial.” (Footnotes omitted). The Brault court did not consider the line of federal cases which have permitted a cause of action for damages against municipalities under the Fifth and Fourteenth Amendments when the taking of “private property ... for public use, without just compensation” is alleged. The controversy has been increased by the concurrence of Justices Brennan and Marshall in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), which stated: “Although I join the" }, { "docid": "6517880", "title": "", "text": "a restriction on the authority to award injunctive relief to vindicate constitutional rights. It is true that Bush found that the history and structure of the CSRA spoke with sufficient clarity to preclude the creation of a new Bivens claim. But the Supreme Court has developed a special jurisprudence for Bivens claims, and we are hesitant to extend this jurisprudence into other spheres. Just because “special factors counselling hesitation” militate against the creation of a new non-statutory damages remedy, it does not necessarily follow that the long-recognized availability of injunctive relief should be restricted as well. We assume that the power of the federal courts to award legal and equitable relief in actions under 28 U.S.C. § 1331 stems from the same source, see Bush, 462 U.S. at 374, 103 S.Ct. at 2409, but that does not mean that the factors that counsel against one type of relief are equally applicable with respect to the other. See Bivens, 403 U.S. at 405-06, 91 S.Ct. at 2009-10 (Harlan, J., concurring in the judgment); Dellinger, Of Rights and Remedies: The Constitution As A Sword, 85 Harv.L.Rev. 1532, 1543 (1972). As we have noted, a good argument can be made that the reasoning of Busk should be applied to cases involving only injunctive relief, but this application involves a big and important jump. Without more specific guidance from the Supreme Court, we do not think that this is a jump that we should make. We therefore hold that Bush and the related Supreme Court decisions on which the defendants rely did not prevent the district court from entertaining the appellants’ requests for injunctive relief. Nor do we interpret these precedents as limiting the district court’s authority to award declaratory relief under 28 U.S.C. §§ 2201-02. III. For these reasons, the order of the district court is reversed, and the case is remanded. . Mitchum left the Veterans Administration before this appeal was argued, but he claims that he continues to be harmed by the presence in his personnel file of allegedly false and misleading statements concerning events at issue in this action. He" }, { "docid": "9871449", "title": "", "text": "protection of constitutional rights. The acceptance of the teaching of these cases is undoubted and almost universal. Not without significance is that, in the 103 years of the present existence of § 1331, the Court has not decided the question now before us. Professor Dellinger, in his article on the subject, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532 (1972), states that “. with one exception [footnote omitted] prior to Bivens the court has never explicitly exercised the judicial power to create a damage remedy in a case arising under the Constitution . . that exception being Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933). And even in Jacobs the Court may have only recited that the suit was based on the right to recover just compensation for property taken by the United States for public use in exercise of its power of eminent domain and rested upon the Fifth Amendment. So the exception of Jacobs to the general rule thus may not be taken as beyond doubt. Arant v. Lane, 245 U.S. 166, 170, 38 S.Ct. 94, 62 L.Ed. 223 (1917). This understanding is echoed by Professor Moore in Moore’s Federal Practice, Vol. I (1977), p. 665, where he states “In most instances, on the other hand [referring to Bivens], the Constitution unaided by statute does not create rights against private parties. On the whole case, as previously indicated, we are of opinion there is no implied cause of action against the municipality under the Fourteenth Amendment, with jurisdiction under § 1331, for the acts of one of its employees. We give weight to the fact that the amendment itself authorizes action by Congress, which Congress has exercised in § 1983, and which, even under Monell, does not permit untrammeled municipal liability. We also give weight to the reasoning that the granting of money damages against a municipality in the absence of legislative authorization actively involves the judiciary in policy decisions relating to the allocation of limited resources which in certain instances may raise serious questions concerning the enforceability" }, { "docid": "840906", "title": "", "text": "right to be “secure . . . against unreasonable searches and seizures” and based his claim for damages directly upon that provision. Reversing lower court holdings that the plaintiff had failed to state a claim upon which relief could be granted, the Supreme Court rejected the contention that the plaintiff was limited to state tort law remedies, noting that state tort law protected different interests than the Fourth Amendment and therefore was not adequate to vindicate Fourth Amendment rights. 403 U.S. at 390-95, 91 S.Ct. 1999. The Court then concluded that federal courts have inherent power to remedy constitutional injuries by awarding damages since damages “ [historically [had] been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Id. at 395-97, 91 S.Ct. at 2004. The Court in Bivens did not state that an action for damages arising directly under the Constitution would always be allowed. It cautioned that, “[t]he present case involves no special factors counselling hesitation in the absence of affirmative action by Congress.” Id. at 396, 91 S.Ct. at 2004-2005. It added: “[W]e cannot accept respondents’ formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress.” Id. at 397, 91 S.Ct. at 2005. Aside from these statements, however, the Court provided scant guidance as to when a direct action would be allowed. A number of courts have extended the Bivens holding to actions under the Fourteenth Amendment. Some decisions appear to have been based, in part at least, upon the desire to provide civil rights plaintiffs with defendants who are not judgment proof. See, e. g., Williams v. Brown, 398 F.Supp. 155 (N.D.Ill.1975). The municipal exclusion from § 1983 liability has been viewed by these courts as limited only to that section and has been seen as insufficient evidence of congressional intent" }, { "docid": "21883761", "title": "", "text": "has brought to the court’s attention only one potential “special factor”: the defendant is a municipality. Since Congress excluded municipalities from the scope of 42 U.S.C. § 1983, Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), it may be argued that courts should be slow to infer that Congress meant in later enacting 28 U.S.C. § 1331 to provide an alternative device to sue municipalities for violations of federal rights. See Perzanowski v. Salvio, 369 F.Supp. 223, 230 (D.Conn.1974). If a construction of § 1331 as authorizing such suits would render meaningless the immunity enjoyed by municipalities under § 1983, we might find this argument more persuasive. This is not in fact the case, however, for § 1331, with its amount in controversy requirement, would preserve the municipality’s § 1983 immunity as to actions not involving this minimum sum; suits based on § 1983, it will be remembered, see supra, need not satisfy an amount in controversy requirement. Bell v. Hood and Bivens itself, moreover, caution against assuming that Congress’ exemption for municipalities under § 1983 informed its efforts four years later in establishing federal question jurisdiction. For while Congress placed suits against federal officials beyond the scope of § 1983 with no less — and, indeed, probably far more — clarity than it proscribed suits against municipalities, the Court in these two cases confirmed that § 1331 vested federal jurisdiction over civil rights actions against federal officers. We reject the view, therefore, that municipalities enjoy any special status which would immunize them from suits to redress deprivations of federal constitutional rights. See City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (concurring opinion of Brennan & Marshall, JJ.); Dupree v. City of Chattanooga, 362 F.Supp. 1136, 1138-39 (E.D.Tenn.1973); Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1558-59 (1972). The plaintiffs have stated a cause of action under the Due Process Clause of the Fourteenth Amendment for which relief may be granted. We therefore reverse the district court’s dismissal of the complaint" }, { "docid": "840907", "title": "", "text": "at 2004-2005. It added: “[W]e cannot accept respondents’ formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress.” Id. at 397, 91 S.Ct. at 2005. Aside from these statements, however, the Court provided scant guidance as to when a direct action would be allowed. A number of courts have extended the Bivens holding to actions under the Fourteenth Amendment. Some decisions appear to have been based, in part at least, upon the desire to provide civil rights plaintiffs with defendants who are not judgment proof. See, e. g., Williams v. Brown, 398 F.Supp. 155 (N.D.Ill.1975). The municipal exclusion from § 1983 liability has been viewed by these courts as limited only to that section and has been seen as insufficient evidence of congressional intent to extend the exclusion to all Fourteenth Amendment civil rights actions. See generally, Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976) (hereinafter cited as Harvard Note). Recently, however, an increasing number of courts have declined to extend the Bivens rationale to Fourteenth Amendment claims against municipalities. A leading case so holding in this district is Pitrone v. Mercadante, 420 F.Supp. 1384 (E.D.Pa. 1976), appeal pending, No. 76—2593 (3d Cir.), in which Judge Ditter concluded that § 1983 provided an “explicit congressional declaration” (quoting Bivens, supra, 403 U.S. at 397, 91 S.Ct. 1999) of an equally effective alternate remedy, thereby making a Bivens action against municipalities improper. More recently Judge Becker reached the same result on the reasoning that recognition of a Bivens action was not clearly necessary in this situation and would be inappropriate because Congress had already acted in the area and was in a better position to judge the policy factors involved. Crosley v. Davis, 426 F.Supp. 389 (E.D.Pa.1977). See generally Comment, Implying a Damage Remedy Against Municipalities Directly" }, { "docid": "840913", "title": "", "text": "legislation.” Amend. XIV, § 5. In accordance with that provision, Congress has enacted a broad legislative scheme for the enforcement of Fourteenth Amendment rights. The Civil Rights Act of 1871 (§ 1983) is merely a starting point. As noted, it provides a private damage remedy against persons who, acting under color of state law, deprive others of Fourteenth Amendment rights, but it excludes states and municipalities from such liability. By contrast, Title II of the Civil Rights Act of 1964, which prohibits discrimination or segregation in places of public accommodation if supported by state action, only permits private actions by aggrieved persons for injunctive relief, precluding actions for damages altogether. A third example of legislative remedy is Title VII of the 1964 Civil Rights Act, prohibiting employment discrimination, which not only provides a private action for specified damages after certain procedural prerequisites have been met, but also extends liability to states and municipalities. It is evident that Congress has tailored the remedial provisions of its civil rights enactments to fit each particular problem confronted. In my view, judicial recognition of actions for damages arising directly under the Constitution would subvert this legislative scheme by allowing bypass of the limitations imposed by Congress on private actions under these Acts. It is interesting to note one commentator’s suggestion that— “The Bivens decision leads to the rather striking conclusion that section 1983 may simply be unnecessary: money damages, as well as equitable relief, may be obtained in suits founded directly upon the Constitution.” Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1559 (1972) (footnote omitted). Of course, § 1983 would not thereby be rendered totally superfluous; under present jurisdictional statutes it would retain significance as to claims failing to meet the $10,000 prerequisite to general federal question jurisdiction under 28 U.S.C. § 1331(a). This would mean, then, that the municipal exclusion from liability under § 1983 would serve only to exclude municipalities from claims under $10,000, but not from those in excess of that amount. Additionally, since alleging the amount in controversy is seldom a significant problem in" }, { "docid": "840905", "title": "", "text": "Since plaintiffs have asserted a claim directly under the Constitution in these actions, and since the amounts in controversy exceed $10,000 in each case, there is jurisdiction over the civil rights claims against the City under § 1331(a) and actions against the City may not be dismissed for lack of jurisdiction. C. Failure to state a claim for damages against municipalities. The City’s primary contention is that as a matter of law claims for damages do not lie against municipalities foir deprivations of Fourteenth Amendment rights and that these actions against it should be dismissed for failure to state claims upon which relief can be granted. Resolution of this contention depends upon whether the holding in Bivens, supra, is to be extended to Fourteenth Amendment claims against municipalities. Bivens was an action for damages against agents of the Federal Bureau of Narcotics who allegedly made an arrest and search without a warrant or probable cause and used unreasonable force in making the arrest. Bivens alleged that the agents’ conduct deprived him of his Fourth Amendment right to be “secure . . . against unreasonable searches and seizures” and based his claim for damages directly upon that provision. Reversing lower court holdings that the plaintiff had failed to state a claim upon which relief could be granted, the Supreme Court rejected the contention that the plaintiff was limited to state tort law remedies, noting that state tort law protected different interests than the Fourth Amendment and therefore was not adequate to vindicate Fourth Amendment rights. 403 U.S. at 390-95, 91 S.Ct. 1999. The Court then concluded that federal courts have inherent power to remedy constitutional injuries by awarding damages since damages “ [historically [had] been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Id. at 395-97, 91 S.Ct. at 2004. The Court in Bivens did not state that an action for damages arising directly under the Constitution would always be allowed. It cautioned that, “[t]he present case involves no special factors counselling hesitation in the absence of affirmative action by Congress.” Id. at 396, 91 S.Ct." }, { "docid": "5229006", "title": "", "text": "sues directly under the thirteenth and fourteenth amendments, as well as under § 1983. Brault v. Town of Milton, 527 F.2d 730 (2 Cir. 1975), held that 28 U.S.C. § 1331 sustains jurisdiction for a direct action under the fourteenth ,amendment against a municipality not subject to § 1983 suit. See also Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Singleton v. Vance County Board of Education, supra, (Winter, J., concurring and dissenting); Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D.Cal.1974); Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1553-59 (1972).” 529 F.2d at 50-51. In Brault v. Town of Milton, supra, 527 F.2d 731, 734-35 (2d Cir. 1975) (panel opinion), cited by the Fourth Circuit in Cox v. Stanton, 529 F.2d 47, 50-51, the court held that the Fourteenth Amendment provided a cause of action in damages against a municipality for its alleged taking of the plaintiffs’ property by its enforcement of a zoning ordinance. The court reasoned as follows: “We conclude, therefore, that the Braults’ invocation of the Fourteenth Amendment’s Due Process Clause as the source of their claim for relief comes within Bivens’ sweeping approbation of constitutionally-based causes of action. “As the Court in Bivens indicated, however, the adjudication of some claims rooted in the Constitution may be precluded by ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ Id. [403 U.S.] at 396, 91 S.Ct. at 2005. In the case now before us, the appellee has brought to the court’s attention only one potential ‘special factor’: the defendant is a municipality. Since Congress excluded municipalities from the scope of 42 U.S.C. § 1983, Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), it may be argued that courts should be slow to infer that Congress meant in later enacting 28 U.S.C. § 1331 to provide an alternative device to sue municipalities for violations of federal rights. See Perzanowski v. Salvio, 369 F.Supp. 223, 230 (D.Conn.1974). If a construction of § 1331 as authorizing" }, { "docid": "5229009", "title": "", "text": "suits to redress deprivations of federal constitutional rights. See City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (concur ring opinion of Brennan & Marshall, JJ.); Dupree v. City of Chattanooga, 362 F.Supp. 1136, 1138-39 (E.D.Tenn.1973); Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1558-59 (1972). “The plaintiffs have stated a cause of action under the Due Process Clause of the Fourteenth Amendment for which relief may be granted. We therefore reverse the district court’s dismissal of the complaint and remand for trial.” (Footnotes omitted). The Brault court did not consider the line of federal cases which have permitted a cause of action for damages against municipalities under the Fifth and Fourteenth Amendments when the taking of “private property ... for public use, without just compensation” is alleged. The controversy has been increased by the concurrence of Justices Brennan and Marshall in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), which stated: “Although I join the opinion of the Court, I would add that I find unimpeachably correct the District Court’s conclusion that appellants failed to comply with the requirements of the Due Process Clause in denying renewal of appellees’ liquor licenses. Nevertheless, since the defendants named in the complaints were the municipalities of Kenosha and Racine, jurisdiction cannot be based on 28 U.S.C. § 1343. Moor v. County of Alameda, 411 U.S. 693 [93 S.Ct. 1785, 36 L.Ed.2d 596] (1973); Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961). Appellees did assert 28 U.S.C. § 1331 as an alternative ground of jurisdiction, but I agree with the Court’s conclusion that existence of the requisite amount in controversy is not, on this record, clearly established. If appellees can prove their allegation that at least $10,000 is in controversy, then § 1331 jurisdiction is available, Bell v. Hood, 327 U.S. 678 [66 S.Ct. 773, 90 L.Ed. 939] (1946); cf. Bivens v. Six Fed. Narcotics Agents, 403 U.S. 388 [91 S.Ct. 1999, 29 L.Ed.2d 619] (1971), and they are" }, { "docid": "9871451", "title": "", "text": "of a court’s mandate. See Dellinger, p. 1533. Also taken into account is the fact that the plaintiff here has a remedy, perhaps not perfect, but that which was contemplated by Congress. In our case, affirmative action by Congress should counsel hesitation. Bivens, 403 U.S. p. 396, 91 S.Ct. 1999. In contrast to Bivens, which did not deal “with a question of ‘federal fiscal policy’ ” by allowing a suit against federal agents, we do deal with a question of State fiscal policy should we permit a suit against a municipal corporation based on respondeat superior and not subject to the limitations of § 1983, the only source for satisfaction of a judgment against it being the taxpayers who furnish the money to the municipality. Again, in contrast to Bivens which had no formulation of congressional policy as to whether the availability of money damages was necessary to enforce the Fourth Amendment, we have here a congressional policy that while money damages against an individual may be necessary to enforce the Fourteenth Amendment, they are in certain circumstances inappropriate against municipalities on account of the same act of the same employee. Finally and not of the least importance, should we give as our opinion that there is an implied cause of action under the Fourteenth Amendment in the setting here, it would seem impossible for Congress to undo it for the federal courts in adjudicating such acts of Congress would enter into a balancing procedure to ascertain whether the remedy enacted by Congress is as adequate as a court implied remedy. That to us would seem to be a violation of the fifth clause of the Fourteenth Amendment which has expressly entrusted to Congress the “power to enforce, by appropriate legislation, the provisions of this article.” As MonelI holds, Congress has done just this. We doubt that we should take away this constitutionally entrusted power by judicial decision. Indeed, it seems that our authority so to do is little better than doubtful if it should exist at all. The judgment of the district court must be vacated and the case" } ]

[ { "docid": "17396061", "title": "", "text": "It is clear from recent decisions of the Supreme Court that the proper focus in an entrapment case is not the alleged misconduct of the Government, but rather the predisposition of the defendant to engage in the criminal activity with which he is charged. See United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); accord Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The crucial question is whether the Government officials “implantfed] in the mind of an innocent person the disposition to commit the alleged offense and induce[d] its commission in order that they may prosecute”. Russell, 411 U.S. at 435, 93 S.Ct. at 1644, (quoting Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 77 L.Ed. 413 (1932) and Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958)). As such, entrapment is a factual issue to be submitted to the trier of fact. See Osborn v. United States, 385 U.S. 323, 331, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); United States v. Griffin, 434 F.2d 978, 982 (9 Cir. 1970), cert. denied sub nom. Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971). Appellant contends that he had a right to present fully all available evidence bearing on his entrapment defense to show a lack of predisposition to engage in the criminal activity. In particular, he argues that he should have been permitted to present, through the testimony of LaJeunesse, statements made by Meek which would contradict much of Wyman’s testimony and would also corroborate his claim that at the initial meeting he engaged in no drug sale negotiations, but rather it was Tabb who had the sample case and who was attempting to negotiate a cocaine sale. Wyman’s testimony, uncontradicted and unimpeached, could have been sufficient to convince the jury of appellant’s predisposition to sell cocaine. In contrast, Meek’s statements, if believed, could have generated considerable doubt about appellant’s predisposition by showing that he had been only a passive observer at the" } ]

[ { "docid": "22588469", "title": "", "text": "Shapiro, 669 F.2d 593 (9th Cir. 1982); United States v. Diggs, 649 F.2d 731, 738 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). The primary focus on the appellate review should be on the defendant’s predisposition to commit the crime rather than on the character of the Government agents’ actions. Id. Although only slight evidence is needed to create a factual issue and get the defense to the jury, this evidence must at least suggest that the defendant was initially unwilling to commit the crime, or that Government involvement planted the criminal design in the defendant’s mind. Id. at 738-39. In arguing that there was no evidence of criminal predisposition, the appellant concentrates on one of the factors listed in Diggs as bearing on the inquiry, namely, whether the initial suggestion of criminal activity was made by the Government. As we have held, “[m]ere assistance by government agents in the commission of a crime, however, is insufficient to raise the issue of entrapment.” United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976). The record contains no evidence that Fleish-man displayed any reluctance to engage in the drug transaction, and the fact that a Government informant made the initial contact is overshadowed by Fleishman’s un-induced willingness to conclude a deal. Fle-ishman did not need to be persuaded by the Government agents. Fleishman’s criminal predisposition, therefore, eliminated entrapment as a potential defense. Fleishman bragged of his experience and capabilities in counting large amounts of money. Fleishman informed the agents that this last ten pound transaction represented the end of a large amount of narcotics dealing. Moreover, Fleishman’s familiarity with prices and the means of supplying narcotics demonstrated his predisposition. There was no evidence to contradict the fact that Fleishman was ready, willing, and able to engage in narcotic transactions and the agents merely provided him a propitious opportunity to do so. It was, therefore, proper for the district court to refuse to instruct the jury regarding the law of entrapment. Prosecutorial Comments Fleishman argues that certain closing arguments made by the Government impermissibly commented" }, { "docid": "17682709", "title": "", "text": "hunter, had an interest in sharing information with police officers concerning the whereabouts of fugitives he was seeking. With respect to his occupation, Cunningham on occasion exchanged information with police officers without receiving compensation. Such an interest does not, however, make him a government agent for purposes of this case. The record reveals that the conduct of Cunningham, at most, amounted to assistance in the commission of the crime, which is insufficient to show entrapment. See United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir.1976). In addition, Dudley was not entitled to an entrapment instruction since there existed overwhelming evidence of his predisposition to participate in the conspiracy to possess and distribute stolen checks. In United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir.), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978), this Circuit noted that “the most important factor ... is whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement.” The evidence at trial established that apart from the transaction with Cunningham, Dudley engaged in numerous acts intended to further the objects of the conspiracy. These actions clearly show that Dudley was not reluctant to engage in criminal activity. For example, Dudley recruited government witness Lorraine Belloti to distribute stolen checks, he instructed her to open a fictitious bank account in the name Rosie Kendricks, he received stolen checks from government witness Eddie Lewis, he opened mail brought by co-defendant Terry Rhodes and removed checks, he laundered stolen checks through Larry Colbert, he attempted to sell stolen checks to Century Check Cashing, and he distributed stolen checks to Henry Basa. Thus, Dudley did not meet his preliminary burden of establishing that he was induced to commit the crime, and the prosecution established that he was predisposed to commit the crime. See United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); United States v. Hermosillo-Nanez, 545 F.2d 1230, 1232 (9th Cir.1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 763, 50 L.Ed.2d 767 (1977)." }, { "docid": "16655645", "title": "", "text": "whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. See United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); Reynoso, 548 F.2d at 1336. The record indicates a dispute on several of these factors which the jury properly resolved. First, the evidence suggests that Lee, rather than the government, initially suggested criminal activity and initially contacted the Hong Kong bank. Moreover, So negotiated a personal fee for laundering services, thus supporting an inference of a profit motive. The most important factor, however, is the defendant’s lack of reluctance. See, e.g., Reynoso, 548 F.2d at 1336 & n. 11. So appears to have entered the transactions with relish and expertise, providing technical advice and documentation, while boasting of his ability to launder money for smugglers in various parts of the world. The only party who displayed reluctance, Chan, was acquitted. On the basis of the disputed issues of fact in the record, therefore, the issue of entrapment was properly decided by the trier of fact. The evidence was more than ample for the jury to find against So on this issue. Ill So argues that his convictions for five felonies under 31 U.S.C. §§ 5313 and 5322(b) must be reduced to misdemeanors. Section 5322(a) treats willful violations of the currency reporting laws as misdemeanors. See 18 U.S.C. § 1(1), (2). Section 5322(b), however, treats them as felonies if they are a “part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.” Section 5322(b) is a recodification of 31 U.S.C. § 1059, see 31 U.S.C. § 5322 note, and was not intended to and did not change the substance of the original section 1059. See United States v. Booky, 733 F.2d 1335, 1337 n. 3 (9th Cir.1984); H.R.Rep. No. 651, 97th Cong., 2d Sess. 3, reprinted in 1982 U.S.Code Cong. & Ad.News 1895,1897. The first two substantive counts of So’s indictment were charged as misdemeanors because neither of the first two split deposits individually exceeded $100,000 and" }, { "docid": "383845", "title": "", "text": "to check for a wire prior to each transaction. Citro engaged in the activity for profit, and the government’s inducement of two expensive dinners and a $200.00 fee for each introduction was not overwhelming. In United States v. Esquer-Gamez, 550 F.2d 1231, 1234 (9th Cir.1977), the court rejected the defendant’s argument that he was not predisposed to supply cocaine despite his initial reluctance and the fact that he cooperated only after repeated inducements, numbering approximately twenty. The court noted that the only inducement offered the defendant was money. Id. Ci-tro’s position is very similar to that of the defendant in Esquer-Gamez. Although it is true that he did not initiate the idea of a credit card fraud scheme and did not immediately agree to participate, Citro eventually engaged in the scheme fully, and the only inducements offered were money and two expensive dinners. Viewed in the light most favorable to the government, there was sufficient evidence for a rational trier of fact to conclude that Citro was predisposed to commit the crime. Therefore, the district court did not err in denying Citro’s motions for acquittal based on the entrapment defense. Neither was it an abuse of discretion for the trial judge to deny Citro’s motion for a new trial based on the same grounds. II. Outrageous Government Conduct A motion to dismiss an indictment based on outrageous government conduct is a question of law reviewed de novo. United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983). Due process under the Fifth Amendment warrants dismissal of an indictment only where “the government’s conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.” Ramirez, 710 F.2d at 539 (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977)). This defense is similar to that of entrapment and may be applied where involvement by undercover police officers or informers in contraband" }, { "docid": "10067982", "title": "", "text": "to produce evidence of his lack of predisposition, but neither do we agree with defendant’s claim that the evidence established entrapment as a matter of law. Rather, the evidence raised defendant’s predisposition as a question of fact that was properly for the trier of fact to decide. To respond to the Government’s contention it is enough to point out that the prosecution’s evidence demonstrated some degree of Government involvement in coaxing defendant into committing the offense, and that defendant, for whatever reason, was initially reluctant to become involved in CSF. This is enough to raise the defense of entrapment; there is no requirement that defendant testify as to his lack of predisposition or present his own witnesses. See Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958) (successful defense of entrapment based solely on Government’s witnesses). This evidence, however, is not sufficient to establish entrapment as a matter of law, which occurs only when the lack of predisposition is apparent from the uncontradicted evidence. United States v. Kaminski, 703 F.2d at 1007 (7th Cir.1983); United States v. Spain, 536 F.2d 170, 173 (7th Cir.1976), cert, denied, 429 U.S. 833, 97 S.Ct. 96, 50 L.Ed.2d 97. The Government presented sufficient evidence to support the conclusion that defendant was predisposed. As we observed in Kaminski, determining whether a defendant was predisposed requires an analysis of the following factors: (1) the character or reputation of the defendant; (2) whether the suggestion of criminal activity was originally made by the Government; (3) whether the defendant was engaged in criminal activity for a profit; (4) whether the defendant evidenced reluctance to commit the offense, overcome by Government persuasion; (5) the nature of the inducement or persuasion offered by the Government. Kaminski at 1008; United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir.1977), cert, denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978). Although all of these factors must be taken into consideration, the most important element of the equation is whether the defendant was reluctant to commit the offense. Kaminski at 1008. Defendant argues that" }, { "docid": "383842", "title": "", "text": "appeals the trial court’s imposition of sentence as an abuse of discretion. I. Entrapment In reviewing the denial of a motion for acquittal based on entrapment as a matter of law, the court must view the evidence in the light most favorable to the government, and decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 821 (9th Cir.1985), cert. denied, 471 U.S. 1139, 105 S.Ct. 2684, 86 L.Ed.2d 701 (1985). Abuse of discretion is the standard of review governing Citro’s appeal of the denial of his motion for a new trial based on the same grounds. Id. The court will only grant the motion in exceptional circumstances where the evidence weighs heavily against the verdict. Id. In order to prove entrapment as a matter of law, there must be undisputed evidence that a government agent induced an otherwise innocent person to commit the alleged crime by trickery, persuasion, or fraud. Id. “The controlling question on review is whether the defendant lack[ed] the predisposition to commit the act.” Id. Citro argues that the Supreme Court’s decisions in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) are controlling. Based on the facts in these two decisions the Ninth Circuit has developed five factors to consider when determining the predisposition of the defendant: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. United States v. So, 755 F.2d 1350, 1354 (9th Cir.1985); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978). None of these factors alone indicates either the presence or absence of predisposition, however the most important factor is whether the defendant" }, { "docid": "20808559", "title": "", "text": "as Job had said, and from Los Angeles; and the cocaine laboratory found, as Job said it would be, in the bathroom of Tavelman’s room. See United States v. Buckner, 610 F.2d 570, 574-75 (9th Cir. 1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1646, 64 L.Ed.2d 235 (1980). V. ENTRAPMENT AND DUE PROCESS CHALLENGES Both defendants contend that the government’s role in “originating, conceptualizing, and engineering the entire plan” was entrapment. The defendants’ entrapment defense fails factually because of the evidence adduced at trial. Government conduct which originates the criminal design and implants it in the mind of an innocent or unwilling defendant is entrapment. Sherman v. United States, 356 U.S. 369, 371-73, 78 S.Ct. 819, 820-21, 2 L.Ed.2d 848 (1958). To determine whether the government has implanted a criminal design in the mind of an otherwise innocent defendant, the court considers: the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government. United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978). The record supports the finding that there was no entrapment. Alternatively, the defendants argue that the government’s conduct in “originating, conceptualizing, and engineering the entire plan” was so shocking that it should offend the court’s “sense of justice.” The Third Circuit has held that outrageous and overreaching police involvement invalidated a conviction despite a showing of the defendant’s predisposition. See United States v. Twigg, 588 F.2d 373, 378-80 (3d Cir. 1978). See also United States v. Borum, 584 F.2d 424, 427-30 (D.C.Cir. 1978). Although the record provides a basis for defendants’ argument, it also satisfies us that the conduct complained of here does not reach that extreme area in which it is “outrageous” or “grossly shocking.” See United States" }, { "docid": "2431448", "title": "", "text": "L.Ed.2d 113 (1975) (Powell, J. concurring). A claim of outrageous government conduct differs from the defense of entrapment. The issue of entrapment “focus[es] on the intent or predisposition of the defendant to commit the crime.” United States v. Russell, 411 U.S. at 429, 93 S.Ct. at 1641. The concept of outrageous government conduct focuses on the Government’s actions. An indictment may be set aside because of outrageous government conduct whether or not the defendant was predisposed to engage in criminal activity. United States v. Gonzalez, 539 F.2d 1238, 1239-40 (9th Cir.1976). To prevent the objective standard used in outrageous conduct analysis from “swallowing” the subjective test used in entrapment, a successful due process defense [based on outrageous government conduct] must be predicated on intolerable government conduct which goes beyond that necessary to sustain an entrapment defense. ... While the lines between the objective test of entrapment favored by a minority of the Justices and the due process defense accepted by a majority of the Justices are indeed hazy, the majority of the Court has manifestly reserved for the constitutional defense only the most intolerable government conduct. United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir.1986) (quoting United States v. Jannotti, 673 F.2d 578, 607-8 (3rd Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982)). Thus, the defense applies only to conduct which “is so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. O’Connor, 737 F.2d 814, 817 (9th Cir.1984) (quoting United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983) (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977))), cert. denied, 469 U.S. 1218, 105 S.Ct. 1198, 84 L.Ed.2d 343 (1985). We must first determine whether Arman was an agent of the Government at the time of the allegedly outrageous conduct. If he was not, then the defense is unavailable. McGinley argues that Arman became a government agent when he began cooperating with the Government by testifying before a grand jury" }, { "docid": "16655644", "title": "", "text": "government’s conduct in this case, while providing the funds and opportunity to launder money, was clearly not “so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Ryan, 548 F.2d 782, 789 (9th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976), and 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). B. Entrapment, however, focuses on the predisposition of the defendant to commit a crime, and its existence is a factual issue for the jury. See, e.g., Marcello, 731 F.2d at 1357; United States v. Benveniste, 564 F.2d 335, 340 (9th Cir.1977). So contends that the district court erred in not granting his motion for an acquittal on the basis that there was insufficient evidence to find entrapment beyond a reasonable doubt. We have described five factors to consider when determining predisposition: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. See United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); Reynoso, 548 F.2d at 1336. The record indicates a dispute on several of these factors which the jury properly resolved. First, the evidence suggests that Lee, rather than the government, initially suggested criminal activity and initially contacted the Hong Kong bank. Moreover, So negotiated a personal fee for laundering services, thus supporting an inference of a profit motive. The most important factor, however, is the defendant’s lack of reluctance. See, e.g., Reynoso, 548 F.2d at 1336 & n. 11. So appears to have entered the transactions with relish and expertise, providing technical advice and documentation, while boasting of his ability to launder money for smugglers in various parts of the world. The only party who displayed reluctance, Chan, was acquitted. On the basis of the disputed issues of fact in the record, therefore, the issue of entrapment was" }, { "docid": "18782791", "title": "", "text": "addition, the existence of entrapment is ordinarily a question of fact for the jury, see, e.g., Marcello, 731 F.2d at 1357, and we will not disturb the jury’s finding unless, viewing the evidence in the light most favorable to the government, no reasonable jury could have concluded that Fike was predisposed to commit the charged offenses, see, e.g., Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). Our review of the record indicates the government submitted ample evidence showing such predisposition. We have described several factors that may be considered when determining predisposition, see, e.g., United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981), the most important of which is whether the defendant showed any reluctance, see, e.g., So, 755 F.2d at 1354; United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 & n. 11 (9th Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978). From his first meeting with Gavitt, Fike seemed eager to work with him, often bragging about the extent of his illegal activities in order to impress him. There also was little doubt that Fike engaged in the criminal activities for profit, another factor we have recognized as relevant to predisposition. See, e.g., Diggs, 649 F.2d at 739. Finally, the government introduced evidence that in 1978 and 1979 Fike was convicted of or pleaded guilty to various violations of wildlife laws. Evidence of prior criminal acts, although generally inadmissible to show propensity, is admissible to show predisposition where the defense of entrapment is raised. E.g., id. at 737. Fike’s principle argument is that he was in dire financial straits and was induced to commit the charged offenses by the large sums of money Gavitt was offering. We have made clear that, harsh though the rule may be, an individual “cannot claim he was entrapped simply because he was poor and could not resist the substantial sums of money to be made.” United States v. Dion, 762 F.2d 674, 689 (8th Cir.1985). Given the substantial" }, { "docid": "22437423", "title": "", "text": "due process defense based on government involvement if the defendant was predisposed to commit the crime. Id. at 490, 96 S.Ct. at 1650. The two concurring Justices found it unnecessary to decide whether predisposition precludes a due process defense as well as the entrapment defense, leaving that question open. Id. at 492-95, 96 S.Ct. at 1651-1652 (Powell, J., concurring). Three dissenting justices also declined to decide the constitutional issue. Id. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting). As this court has said, “Hampton left open the possibility that the conviction of a predisposed defendant may be reversed where the government’s involvement in the criminal scheme reaches such an outrageous level as to violate due process.” United States v. Gonzales-Benitez, 537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). See United States v. Prairie, 572 F.2d 1316, 1319 & n.3 (9th Cir. 1978). Although excess government involvement in a criminal enterprise may give rise to a due process defense, the courts rarely have found the defense available. The Supreme Court has never reversed a conviction on this ground. We have not done so since Greene. “This court has emphasized that the due process channel which Russell kept open is a most narrow one, to be invoked only when the government’s conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). See United States v. Smith, 538 F.2d 1359, 1361 (9th Cir. 1976). The government set Heald up as “bait” by spreading word generally that So-Cal was interested in promoting gambling legislation and in meeting politicians who shared that interest. This tactic led Heald to Gallagher, who volunteered the services of Bagnariol and Walgren. Gallagher stated that appellants planned to expand gambling gradually while maintaining control over its operation and were looking for the proper vehicle in which to vest that control. The government, through So-Cal, provided that vehicle. Once the government" }, { "docid": "14206974", "title": "", "text": "must be determined by reference to “ ‘the universal sense of justice.’ ” See Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960)). Although the requirement of outrageousness has been stated in several different ways by various courts, the thrust of each of these formulations is that the challenged conduct must be shocking, outrageous, and clearly intolerable. See, e.g., Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (conduct must violate “ ‘fundamental fairness’ ” or “ ‘shock[ ] the universal sense of justice,’ ”) (quoting Kinsella, 361 U.S. at 246, 80 S.Ct. at 304); Nichols, 877 F.2d at 827 (conduct must be “shocking and outrageous and reach[ ] an ‘intolerable level’ ”) (quoting Russell, 411 U.S. at 431-32, 93 S.Ct. at 1643); United States v. Ryan, 548 F.2d 782, 789 (9th Cir.) (conduct must be “so grossly shocking and so outrageous as to violate the universal sense of justice”), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976), and cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). The cases make it clear that this is an extraordinary defense reserved for only the most egregious circumstances. It is not to be invoked each time the government acts deceptively or participates in a crime that it is investigating. Nor is it intended merely as a device to circumvent the predisposition test in the entrapment defense. See United States v. Warren, 747 F.2d 1339, 1341-42 (10th Cir.1984) (“The outrageous governmental conduct defense is manifestly reserved for only ‘the most intolerable government conduct,’ ”) (quoting Jannotti, 673 F.2d at 608); Ryan, 548 F.2d at 789 (“the due process channel which Russell kept open is a most narrow one”). Government agents often need to play the role of criminals in order to apprehend criminals, and this role occasionally entails unseemly behavior. Wide latitude is accorded the government to determine how best to fight crime. See Russell, 411 U.S. at 435, 93 S.Ct. at 1644 (noting danger of" }, { "docid": "16984878", "title": "", "text": "Barnes, Jr., contend that the indictment against them should have been dismissed because of alleged government misconduct during the undercover investigation. Specifically, the two appellants urge that government agents acted improperly in distributing “samples” of marijuana to them with little concern as to what was to become of the contraband and without attempting to retrieve it. Undercover agents distributed two samples to Barnes, Sr., and his son. One contained approximately six ounces of marijuana and the other contained two to five ounces. Barnes, Sr., also alleges that the undercover agents did not obtain permission from their superiors to distribute the second sample. This circuit has held that governmental misconduct warrants dismissal of an indictment “only when the government’s misconduct is so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Bagnariol, 665 F.2d 877, 883 (9th Cir.1981) (per curiam) (quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976), and 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977)), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). We recently noted in United States v. Lomas, 706 F.2d 886, 890-91 (9th Cir.1983), that there have been only two federal appellate cases squarely upholding an outrageous government conduct argument: United States v. Twigg, 588 F.2d 373, 380-81 (3d Cir.1978), and Greene v. United States, 454 F.2d 783, 786-87 (9th Cir.1971). While not limiting the government misconduct argument to the specific activity in Twigg and Greene, we did note that in both those cases the defendants “would not have had the capaci ty to commit the crimes with which they were charged without the government’s assistance.” Lomas, 706 F.2d at 891. “In both cases the government not only provided resources for the production of contraband, but bore primary responsibility for its manufacture.” Id. The questionable actions of the government agents in the present case are not of the same magnitude. We find that the misconduct alleged here is not “grossly shocking” or “outrageous” and so does not warrant" }, { "docid": "16655642", "title": "", "text": "commit the crime. See, e.g., United States v. Marcello, 731 F.2d 1354, 1357 (9th Cir. 1984) (Marcello); United States v. Reyno-so-Ulloa, 548 F.2d 1329, 1334-36 (9th Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978) (Reynoso). A. Even when a defendant is predisposed to commit an offense, his conviction may be overturned if the government is so involved in the criminal endeavor that it shocks our sense of justice and violates due process. See United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973). Neither Russell nor many cases since, however, have found such conduct. The Third Circuit did so in United States v. Twigg, 588 F.2d 373 (3d Cir.1978), where an agent of the Drug Enforcement Agency (DEA) solicited a former felon to open a drug laboratory, provided 20% of the chemicals, arranged favorable supply terms for more chemicals, directed the operation of the laboratory, located a production site, and solved technical problems. Id. at 380-81. Moreover, the two defendants had insufficient technical expertise to run the laboratory without the DEA’s assistance. Id. at 381. We can assume that our sense of justice would be shocked were “government agents [to] engineer and direct [a] criminal enterprise from start to finish.” United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983). Our sense of justice is not shocked, however, when the government merely infiltrates a criminal organization, see Marcello, 731 F.2d at 1357, approaches persons already engaged in or anticipating a criminal activity, see United States v. O’Connor, 737 F.2d 814, 817-18 (9th Cir.1984), or provides valuable and necessary items to the conspiracy, see Lomas, 706 F.2d at 890-91. In this case, the creative inspiration for the charged crimes was provided by Lee, So, and Lam. Lee made the suggestion to the government informant and also made the initial approaches to So and Chan. Moreover, Lee made the technical arrangements for depositing and forming nominee corporations. So and Lam elaborated on these arrangements by providing the de tailed documentation contained in the packet sent from Hong Kong. Thus, the" }, { "docid": "18782781", "title": "", "text": "Cir.1984), and the outrageous government conduct defense focuses, not surprisingly, on the conduct of the government, see, e.g., United States v. So, 755 F.2d 1350, 1353 (9th Cir.1985). In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Supreme Court recognized that there may be “situation[s] in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-32, 93 S.Ct. at 1643 (citation omitted). A plurality of the Court in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), concluded that the outrageous conduct defense was not available to a defendant who was predisposed to commit the crime, id. at 490, 96 S.Ct. at 1650, but a majority of the Court rejected this view and recognized the validity of the defense in appropriate circumstances irrespective of the defendant’s criminal predisposition, see id. at 495 n. 7, 96 S.Ct. at 1653 n. 7 (Powell, J., concurring, joined by Blackmun, J.); id. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting, joined by Stewart and Marshall, J.J.). We recently reaffirmed the view we have consistently expressed. In United States v. Bogart, 783 F.2d 1428 (9th Cir.1986), we held that, regardless of evidence of predisposition, “a defendant may raise a due process-based outrageous government conduct defense to a criminal indictment.” Id. at 1433 (citing cases). We have also stated that “the due process channel which Russell kept open is a most narrow one.” United States v. Ryan, 548 F.2d 782, 789 (9th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976), and 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). The outrageous government conduct defense is available only where “the government is so involved in the criminal endeavor that it shocks our sense of justice.” So, 755 F.2d at 1353; see also, e.g., Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (“violation of ‘fundamental fairness, shocking to the universal sense of justice’ ”) (quoting Russell, 411" }, { "docid": "18782790", "title": "", "text": "the judge was including the secondary entrapment instruction. In addition, any instruction the court might have given as to what makes a person a government agent would, under the facts of this case, have excluded Ellison; consequently, Fike would have been worse off had an agency instruction been given. Thus, he suffered no prejudice. B. Sufficiency of the Evidence The entrapment defense focuses on whether the defendant was predisposed to commit the crime with which he is charged. See, e.g., United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973); United States v. Marcello, 731 F.2d 1354, 1357 (9th Cir.1984). Fike contends the government failed to produce sufficient evidence to prove predisposition beyond a reasonable doubt. Fike did not, however, raise this issue before the district court. As a general rule we will not consider an argument presented for the first time on appeal. E.g., United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (198 4). In addition, the existence of entrapment is ordinarily a question of fact for the jury, see, e.g., Marcello, 731 F.2d at 1357, and we will not disturb the jury’s finding unless, viewing the evidence in the light most favorable to the government, no reasonable jury could have concluded that Fike was predisposed to commit the charged offenses, see, e.g., Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). Our review of the record indicates the government submitted ample evidence showing such predisposition. We have described several factors that may be considered when determining predisposition, see, e.g., United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981), the most important of which is whether the defendant showed any reluctance, see, e.g., So, 755 F.2d at 1354; United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 & n. 11 (9th Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978). From his first meeting with Gavitt, Fike seemed" }, { "docid": "22588468", "title": "", "text": "cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981); United States v. Lee, 589 F.2d 980, 985 (9th Cir.), cert. denied, 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 382 (1979); United States v. Kaplan, 554 F.2d 958, 968 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). Green’s main contention is that he was unable to provide the jury with language that a conviction could not be justified on mere speculation or conjecture. The many instructions given stating that the jury must find each element of each offense beyond a reasonable doubt adequately covered the point desired by Green. The court’s refusal to modify the burden of proof instruction was therefore not error. Entrapment Instruction Fleishman argues that it was error for the district court to have refused his proposed entrapment instruction. It was not. Whether there exist issues of fact as to a defense of entrapment is properly a question for the trial judge, the standard of review being abuse of discretion. United States v. Shapiro, 669 F.2d 593 (9th Cir. 1982); United States v. Diggs, 649 F.2d 731, 738 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). The primary focus on the appellate review should be on the defendant’s predisposition to commit the crime rather than on the character of the Government agents’ actions. Id. Although only slight evidence is needed to create a factual issue and get the defense to the jury, this evidence must at least suggest that the defendant was initially unwilling to commit the crime, or that Government involvement planted the criminal design in the defendant’s mind. Id. at 738-39. In arguing that there was no evidence of criminal predisposition, the appellant concentrates on one of the factors listed in Diggs as bearing on the inquiry, namely, whether the initial suggestion of criminal activity was made by the Government. As we have held, “[m]ere assistance by government agents in the commission of a crime, however, is insufficient to raise the issue of entrapment.” United States v. Ratcliffe, 550 F.2d" }, { "docid": "16655643", "title": "", "text": "expertise to run the laboratory without the DEA’s assistance. Id. at 381. We can assume that our sense of justice would be shocked were “government agents [to] engineer and direct [a] criminal enterprise from start to finish.” United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983). Our sense of justice is not shocked, however, when the government merely infiltrates a criminal organization, see Marcello, 731 F.2d at 1357, approaches persons already engaged in or anticipating a criminal activity, see United States v. O’Connor, 737 F.2d 814, 817-18 (9th Cir.1984), or provides valuable and necessary items to the conspiracy, see Lomas, 706 F.2d at 890-91. In this case, the creative inspiration for the charged crimes was provided by Lee, So, and Lam. Lee made the suggestion to the government informant and also made the initial approaches to So and Chan. Moreover, Lee made the technical arrangements for depositing and forming nominee corporations. So and Lam elaborated on these arrangements by providing the de tailed documentation contained in the packet sent from Hong Kong. Thus, the government’s conduct in this case, while providing the funds and opportunity to launder money, was clearly not “so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Ryan, 548 F.2d 782, 789 (9th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976), and 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). B. Entrapment, however, focuses on the predisposition of the defendant to commit a crime, and its existence is a factual issue for the jury. See, e.g., Marcello, 731 F.2d at 1357; United States v. Benveniste, 564 F.2d 335, 340 (9th Cir.1977). So contends that the district court erred in not granting his motion for an acquittal on the basis that there was insufficient evidence to find entrapment beyond a reasonable doubt. We have described five factors to consider when determining predisposition: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4)" }, { "docid": "17682710", "title": "", "text": "with Cunningham, Dudley engaged in numerous acts intended to further the objects of the conspiracy. These actions clearly show that Dudley was not reluctant to engage in criminal activity. For example, Dudley recruited government witness Lorraine Belloti to distribute stolen checks, he instructed her to open a fictitious bank account in the name Rosie Kendricks, he received stolen checks from government witness Eddie Lewis, he opened mail brought by co-defendant Terry Rhodes and removed checks, he laundered stolen checks through Larry Colbert, he attempted to sell stolen checks to Century Check Cashing, and he distributed stolen checks to Henry Basa. Thus, Dudley did not meet his preliminary burden of establishing that he was induced to commit the crime, and the prosecution established that he was predisposed to commit the crime. See United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); United States v. Hermosillo-Nanez, 545 F.2d 1230, 1232 (9th Cir.1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 763, 50 L.Ed.2d 767 (1977). When the evidence presents no genuine dispute as to whether the defendant was entrapped, there is no factual issue for the jury, and the judge has a duty to rule on the defense as a matter of law. United States v. Glaeser, 550 F.2d 483, 487 (9th Cir.1977). In the circumstances of this case, there was no factual issue for the jury, and the trial court correctly ruled as a matter of law that Dudley was not entrapped. Second, during the course of the Government’s case, the trial court increased defendant Dudley’s bond and remanded him to custody after Dudley engaged in conduct, which in the trial court’s opinion, threatened to disrupt the orderly progress of the trial. Rule 46(b) of the Federal Rules of Criminal Procedure provides that a trial court may terminate a defendant’s release on bail if necessary “to assure that his conduct will not obstruct the orderly and expeditious progress of the trial.” See Carbo v. United States, 288 F.2d 282 (9th Cir. 1961). From a review of the record we" }, { "docid": "22990017", "title": "", "text": "a question for the trial judge, the standard of review being abuse of discretion. See United States v. Glaeser, 550 F.2d 483, 487 (9th Cir. 1977). The primary focus of appellate review should be on the defendant’s predisposition to commit the crime rather than on the character of the government agents’ actions. United States v. Russell, 411 U.S. 423, 432-34, 93 S.Ct. 1637, 1643-44, 36 L.Ed.2d 366 (1973) (reaffirming subjective theory of entrapment articulated in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932)); United States v. Reynoso-Ulloa, supra, 548 F.2d at 1334-35. Although only “slight” evidence is needed to create a factual issue and get the defense to the jury, this evidence must at least suggest that the defendant was initially unwilling to commit the crime, or that government involvement planted the criminal design in the defendant’s mind. United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976); United States v. Christopher, 488 F.2d 849, 850-51 & n.1 (9th Cir. 1973). Five factors should guide a court’s assessment of whether the defendant had criminal predisposition: (1) The defendant’s reputation. (2) Whether the initial suggestion of criminal activity was made by the government. (3) Whether the defendant engaged in the alleged criminal conduct for profit. (4) Whether the defendant displayed reluctance to engage in the activity, which was only overcome by repeated government persuasion. (5) The nature of the inducement or-persuasion. United States v. Reynoso-Ulloa, supra, 548 F.2d at 1336. Oliverez’ argument on this issue is without merit. He had only one encounter with government agents, during which nothing occurred to support the claim that he was pressured by the government into committing illegal acts. Additionally, the contract between Oliverez and Diggs appears by its terms to have been for the personal profit of each. Nor does Oliverez point to evidence in the record showing that he was initially reluctant to act. The sole factor militating in favor of an entrapment defense is his apparent good standing in the" } ]

[ { "docid": "22440189", "title": "", "text": "mean that the court’s June 30, 1998 order (dismissing with leave to reinstate), somehow included the rhunic-ipal liability claim. That claim was dismissed by the court on October 29, 1997 and again on January 12, 1998 when the court denied plaintiffs motion to modify the October 29 order. Since the court entered a final judgment for defendants on March 5, 1999 and McCormick has filed a timely appeal, he may challenge all of the court’s prior rulings, including the court’s dismissal of his municipal liability claim. See Head v. Chicago Sch. Reform Bd. of Trustees, 225 F.3d 794, 799-800 (7th Cir.2000). We review the district judge’s decision to grant a motion to dismiss de novo. See Payton v. RushPresbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 625 (7th Cir.1999). The Supreme Court has made it very clear that federal courts must not apply a heightened pleading standard in civil rights cases alleging § 1983 municipal liability. • See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). To survive a motion to dismiss, “a pleading must only contain enough to ‘allow the court and the defendant to understand the gravamen of the plaintiffs complaint,’ ” Payton, 184 F.3d at 627 (citing Doherty v. City of Chicago, 75 F.3d 318, 326 (7th Cir.1996)). The task for the court in these cases then is to determine exactly what is “enough.” To allege that a municipal policy has violated an individual’s civil rights under § 1981 or § 1983, McCormick needed to allege that (1) the City had an express policy that, when enforced, causes a constitutional deprivation; (2) the City had a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage within the force of law; or (3) plaintiffs constitutional injury was caused by a person with final policymaking authority. See McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.1995). McCormick chose to rely upon the second of these three options. According to" } ]

[ { "docid": "10372969", "title": "", "text": "727 F.Supp. 440 (N.D.Ill.1989) (“To sufficiently state a cause of action under 42 U.S.C. § 1981, the plaintiff must allege some facts that demonstrate that she was discriminated against because of her race.”); Patrick v. Staples, 780 F.Supp. 1528 (N.D.Ind.1991) (“To state a claim under the Equal Protection Clause, a plaintiff must allege that a state actor intentionally discriminated against the plaintiff based upon his or her membership in a protected class.”) (citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982)); 42 U.S.C. § 2000d (“No person in the United States shall, on the grounds of race ... be subjected to discrimination under any program or activity receiving Federal financial assistance.”). At issue here is whether Miller has sufficiently alleged intentional discrimination. Although this circuit has previously held civil rights plaintiffs to heightened pleading requirements, in a recent opinion, the Supreme Court held this practice unconstitutional. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, — U.S. -, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (§ 1983 cases are governed by the same pleading rules as the majority of other federal civil actions). While there is little detail in the complaint, plaintiffs do allege that the white candidate and Miller were treated differently. Miller appeared for the meeting and was left to himself. On the other hand, at least some of the suburban Cook County Board members took the white candidate aside for a discussion or interview. Allegations of this disparate treatment put the defendants on notice of the conduct underlying the claim, and the alleged conduct itself supports an inference that the Cook County Board members treated Miller differently because of his race. Accordingly, plaintiffs have met their burden. See Talley v. Leo J. Shapiro & Assoc., Inc., 713 F.Supp. 254, 257 (N.D.Ill.1989) (despite lack of factual detail, § 1981 claim met pleading requirements because it provided defendant with notice of plaintiffs claim and the grounds underlying it). (b) Municipal Custom or Policy under § 1983 In their reply brief, defendants assert that Miller has not, and cannot, allege a county policy or custom as required under §" }, { "docid": "2931077", "title": "", "text": "not alleged that the practice caused more than a single constitutional violation. Therefore, the district court dismissed Mr. Latuszkin’s § 1983 claim and remanded his state law claims to state court. On appeal Mr. Latuszkin argues that the district court construed his complaint too narrowly in finding that he alleged only one incident of unconstitutional conduct. He asserts that the municipal policy at issue is the City’s widespread practice of consciously disregarding unlawful activity by its police officers, not simply that the City is failing to stop the parties. Mr. Latuszkin asserts that the parties are evidence of the City’s policy. Mr. Latuszkin argues that these allegations sufficiently state a claim under the notice pleading standard for § 1983 municipal liability suits. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). This court reviews a 12(b)(6) dismissal de novo, taking all the well-pleaded allegations as true. See McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.1995). A plaintiffs complaint in a § 1983 municipal liability claim need not meet any heightened pleading standard, but rather must simply set forth sufficient allegations to place the court and defendants on notice of the gravamen of the complaint. See McCormick v. City of Chicago, 230 F.3d 319, 323-24 (7th Cir.2000). A dismissal is proper only if there is no set of facts consistent with the allegations in the complaint upon which relief could be granted. See Sledd v. Lindsay, 102 F.3d 282, 289 (7th Cir.1996). A municipality may not be held liable under § 1983 on a respondeat superior theory. See Monell v. Department of Social Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Therefore, Mr. Latuszkin needed to claim that his wife’s death was caused either by (1) the enforcement of an express policy of the City, (2) a widespread practice that is so permanent and well settled as to constitute a custom or usage with the force of law, or (3) a person with final policymaking authority. See McCormick, 230 F.3d at 324. Mr." }, { "docid": "20960034", "title": "", "text": "a person with final policy-making authority. See Baxter, 26 F.3d at 734-35. Moreover, the enforcement of the government’s policy must be the “moving force” behind the alleged constitutional violation. Cornfield by Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1324 (7th Cir.1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985) (plurality opinion)). It appears that Copeland is attempting to allege that the City maintains a de facto policy through custom or usage regarding warrantless arrests. However, his claim consists solely of conclusory, boilerplate assertions of such a policy, unsupported by any factual allegations. “Claims based wholly on conclusory allegations of a de facto municipal policy, constitute one of the most prevalent forms of abuse in § 1983 actions.” Boyd v. Venticinque, No. 93 C 6108, 1994 WL 516747, *2 (N.D.Ill. Sept.19, 1994) (citing Rodgers v. Lincoln Towing Service, Inc., 596 F.Supp. 13, 20 (N.D.Ill.1984), aff'd, 771 F.2d 194 (7th Cir.1985)). A section 1983 claim based on a policy or practice must contain factual allegations that indicate a specific, existing policy or practice that caused the deprivations alleged in the complaint. Bennett v. Holman, No. 95 C 2472, 1995 WL 616817, *2 (N.D.Ill. Oct.17, 1995) (citing McTigue v. City of Chicago, 60 F.3d 381, 382-83 (7th Cir.1995) (citing Baxter, 26 F.3d at 736)). Copeland’s policy claim amounts to a boilerplate assertion that the City has a policy of failing to train its officers in the ways of conducting lawful arrests. Copeland provides no details of this alleged policy to support his claim in any way. For this reason, he fails to state a claim against the City under section 1983 for failure to train. See id. (plaintiff “must point to a specific custom or policy ... and describe how it operated in this instance to deprive him ■ of his civil rights”). As the Seventh Circuit has noted, “[bjoilerplate allegations of a municipal policy, entirely lacking in any factual support that a [municipal] policy does exist, are insufficient____ The absence of any facts at all to support" }, { "docid": "30979", "title": "", "text": "9] and a tiny handful of arguably appropriate judicial supplements to it, a plaintiff in a suit in federal court need not plead facts; he can plead conclusions.” Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir.1995); see also, e.g., Hutchinson v. Spink, 126 F.3d 895, 900 (7th Cir.1997). “[TJhere is no pleading requirement of stating ‘facts sufficient to constitute a cause of action’____” Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir.1944) (Clark, J.); see also Homeyer v. Stanley Tulchin Assocs., 91 F.3d 959, 961 (7th Cir.1996) (“[The plaintiff] was not required to plead facts or evidence to support her allegations; she was not even required to include a theory of the case.”). The Supreme Court has recently confirmed that in civil rights actions against municipalities, “ ‘all\" the Rules require is 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.’ ” Leatherman v. Tarrant County Narcotics and Intelligence Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (footnote omitted)). In applying a test derived from a heightened pleading standard for civil rights complaints to Kyle’s First Amendment claim, the majority is demanding more of a civil rights plaintiff than Rule 8 requires. Because this is inconsistent with Leatherman, I respectfully dissent from the dismissal of Count II. Kyle’s complaint satisfies the requirement described in Gustafson v. Jones, 117 F.3d 1015 (7th Cir.1997), that the complaint allege that the defendants retaliated against the plaintiff on the basis of constitutionally-protected conduct. See Gustafson, 117 F.3d at 1018. The complaint expressly alleges that one of the defendants told Kyle that Kyle was dismissed for Kyle’s political conduct, and this can support an inference of retaliation. See id.; see also McGill v. Board of Educ., 602 F.2d 774, 780 (7th Cir.1979). (There is no basis for the majority’s characterization of the statement as a “rumor.”) Therefore Doherty v. City of Chicago," }, { "docid": "3405797", "title": "", "text": "we take as true all factual allegations contained in the complaint, and construe all reasonable inferences therefrom in the plaintiffs favor. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995). III. Discussion A Municipal Liability Defendant NSSD moves to dismiss Count I, arguing that the Second Amended Complaint only refers to discrete acts of discrimination by some of the individual defendants, and does not allege that Briggs was denied her constitutional rights because of an official policy, practice, or custom of NSSD. See Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). It is well settled that a municipality cannot be liable for the acts of its agents under a theory of respondeat superior. Id. at 691, 98 S.Ct. at 2036. Instead, a plaintiff may establish municipal liability by proving one of the following three conditions: “(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law; or (3) an allegation that the constitutional injury was caused by a person with ‘final policymaking authority.’ ” Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir.1994) (citations and quotation omitted). Although claims of municipal liability need not be pled with a great factual specificity, Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir.1995) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, -, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993)), the Federal Rules nonetheless require a plaintiff to allege sufficient facts to support the existence of a municipal policy, Baxter by Baxter, 26 F.3d at 736. Briggs does not contend that an explicit written policy of racial discrimination existed at NSSD. Rather, she claims that discrimination was so pervasive that it constituted a practice or custom condoned by NSSD, and that the allegedly unconstitutional acts were committed by final policymakers. With regard to her first argument," }, { "docid": "7834214", "title": "", "text": "if the plaintiff can show that he or she suffered a constitutional deprivation that was caused by an official policy, custom, or usage of the municipality. Id. at 690-91, 98 S.Ct. 2018. In his claim against the City for respondeat superior liability, Mr. Mosby alleges that Officer Bell implied he was following the custom and practice of the police department. In count I Mr. Mosby alleges that “it is the custom and practice of Officers of the Chicago Police Department to abuse their power and violate constitutional rights of citizens on an ongoing basis.” (Am.Compl.¶ 43). lie further alleges that the City is aware of this practice and “has failed to act to remedy the pattern of unconstitutional behavior.” (Am.Compl.¶ 44). Although notice pleading is sufficient to bring a § 1983 claim, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the complaint must give the defendant notice of the grounds on which the claim rests. “Boilerplate allegations of a municipal policy, entire lacking in any factual support that a [municipal] policy does exist, are insufficient....” McTigue v. City of Chicago, 60 F.3d 381, 382-83 (7th Cir.1995) (quoting Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 734 (7th Cir.1994)). A general allegation that the City has failed to remedy a pattern of unconstitutional behavior by the Chicago police — with no explanation of how the behavior is unconstitutional and no allegations other than those relating to one incident involving Officer Bell — is insufficient even under notice pleading standards. Mr. Mosby argues that the specific allegations in the complaint relating to Officer Bell’s conduct on the date in question sufficiently give the City notice of the gravamen of his claim. The allegations, however, do not explain the City’s custom or practice. In addition, the cases cited by Mr. Mosby are distinguishable because those plaintiffs alleged specific policies in support of their claims. See Bell v. City of Chicago, 1998 WL 851485, at *3 (N.D.Ill.1998) (alleging specific policies including that the City “does not properly train officers" }, { "docid": "8837946", "title": "", "text": "Pembaur, 475 U.S. at 483, 106 S.Ct. at 1299-1300. Section 1983 does not impose liability upon a municipality or its supervisory officials solely on the basis of respondeat superior. Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. To establish a municipality’s liability on the basis of acts by its lower echelon employees, a violation of constitutional rights based on policy or custom must be demonstrated. Id. at 690, 694, 98 S.Ct. at 2035-36, 2037-38. “The inference that a [constitutionally deficient] policy exist[s] may ... be drawn from circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.” Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). Three elements are necessary to state a cause of action for municipal liability, namely, (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right. Zahra v. Town of. Southold, 48 F.3d 674, 685 (2d Cir.1995), quoting, Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). Applying these standards, the Court reviews the defendants’ motion with respect to Pisello’s section 1983 claims. a. Failure to plead with sufficient particularity Initially, the defendants contend that Pisello’s constitutional claims based on equal protection, procedural and substantive due process must be dismissed for failure to allege sufficient facts to support these claims. At the outset the Court notes that section 1983 claims brought against a municipality are not subject to a higher pleading standard than required under Fed.R.Civ.P. 8(a). Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 163-65, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); see also Blue v. Koren, 72 F.3d 1075, 1083 n. 4 (2d Cir.1995) (citing Leatherman). Accordingly, to survive the defendants’ Rule 12(c) motion, Pisello need only allege “a short and plain statement of the elaim[s] showing that the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Leatherman, 507 U.S. at 168, 113 S.Ct. at 1163. Having recognized the applicable standard for reviewing the" }, { "docid": "5019787", "title": "", "text": "enunciated in Fed.R.Civ.P. 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” We note that both Slater and MCCC cite the same, and correct, standard of pleading. One point of Rule 8(a) is to ensure that the defendant receives fair notice of the claim against it and the grounds upon which the claim rests. Leatherman v. Tarrant County Narcotics Intelligence Unit, 507 U.S. 163, 167-68, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993). Vague and conclusory allegations do not provide fair notice and will not survive a motion to dismiss. United States v. City of Philadelphia, 644 F.2d 187, 204 (3d Cir.1980); Bieros v. Nicola, 860 F.Supp. 226, 229 (E.D.Pa.1994); Sell v. Barner, 586 F.Supp. 319, 321 (E.D.Pa.1984). MCCC contends that Slater’s bare allegations that the Defendants are state actors and that they “acted under the color of state law, regulations, policies, ordinances, and procedures” (Complaint ¶ 37) are not specific enough to give them fair notice of her claim. In support, MCCC cites Bieros. There, this Court dismissed a pro se prisoner plaintiffs complaint with leave to amend. We found that the plaintiff had not made sufficient factual, as opposed to conclusory, averments of each Defendant’s alleged violations of plaintiffs civil rights. 860 F.Supp. at 236. MCCC argues that Slater’s complaint suffers from the same defect in that it is conclusory and does not identify a particular law, custom, policy or practice that violated her rights. Slater argues that her § 1983 claim is pleaded with sufficient particularity because she alleges that MCCC is a state actor and “acted under the color of state law, regulations, policies, ordinances, and procedures.” Complaint ¶ 37. However, these are the only references to MCCC that she makes. Although Slater need not plead facts giving rise to her claim, she must make more than the existing vague and conclusory statements in her complaint. Hines v. Sheahan, 845 F.Supp. 1265, 1268 (N.D.Ill.1994); Askanase v. Fatjo, 148 F.R.D. 570, 573 (S.D.Tex. 1993). Without more detail, we find MCCC does not have fair notice of what" }, { "docid": "16491159", "title": "", "text": "that the constitutional violation resulted from an official custom, policy, or practice. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There are three methods by which a plaintiff can demonstrate an official policy or custom: “(1) an express policy that causes a constitutional deprivation when enforced; (2) a widespread practice that is so permanent and well-settled that it constitutes a custom or practice; or (3) an allegation that the constitutional injury was caused by a person with final policy-making authority.” Estate of Sims v. County of Bureau, 506 F.3d 509, 515 (7th Cir.2007). When an entity has been deliberately indifferent and failed to implement appropriate policies to address known problems, including suicide prevention procedures in a county jail, it is actionable under Monell. See City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Boncher v. Brown County, 272 F.3d 484, 486 (7th Cir.2001). It is further noted that the Supreme Court has expressly rejected a heightened pleading standard for § 1983 claims against a municipality. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 165-66, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Courts in this district have affirmed this principle post-Twombly. See Eckert v. City of Chicago, 2009 WL 1409707, at *6 (N.D.Ill. May 20, 2009); Jones v. Bremen High Sch. Dist. 228, 2009 WL 537073, at *4 (N.D.Ill. Mar. 4, 2009). Thus, an official capacity claim can survive even with conclusory allegations that a policy or practice existed, so long as facts are pled that put the defendants on proper notice of the alleged wrongdoing. McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir.2000). In this case, Defendants contend that Plaintiffs official liability claims against all Defendants are deficient. As to Counts I and II against Andrews and Dart, Defendants urge that they contain unsupported conclusions that Defendants acted with deliberate indifference by failing to maintain appropriate suicide prevention policies. However, given the above standards, the Court disagrees. Plaintiffs Complaint alleges that" }, { "docid": "19210028", "title": "", "text": "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. at 2037. There must be an “affirmative link” between the policy and the alleged constitutional violation. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). “Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident also includes proof that it was caused by an existing, unconstitutional municipal policy.” Id. at 823-24, 105 S.Ct. at 2436-37. A municipal policy or custom is a necessary requirement to establishing liability in a defendant’s individual or official capacity. Sivard I, 959 F.2d at 668; Rascon v. Hardiman, 803 F.2d 269, 273-74 (7th Cir.1986). “Boilerplate allegations of a municipal policy, entirely lacking in any factual support that a city policy does exist, are insufficient.” Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 202 (7th Cir.1985). Sivard’s complaint alleges that Sivard was wrongfully detained pursuant to the policy and custom of the defendants.” The complaint also alleges that Sivard’s “injury and wrongful detention were a direct result of the Defendant Pulaski County, Pulaski County Sheriffs Department, and Charlotte Ward’s actions, custom, and policy.” In Sivard I, we described these allegations as approaching “the level of boilerplate vagueness that this Court has ruled should not survive summary judgment.” Sivard I, 959 F.2d at 668. Nevertheless, we reversed the grant of summary judgment because of the “inexplicable nature of Sivard’s detention.” Id. at 669. The affidavits submitted with the defendants’ second motion for summary judgment eliminate the inexplicable nature of Sivard’s detention. The affidavits of Deputy Sheriff Duhnovsky and Sheriff Ward-Tillett establish that on February 2, 1987, the date of Sivard’s arrest, the Pulaski County Sheriffs Department and Sheriff Ward-Tillett knew that Sivard was wanted on kidnapping charges in Massachusetts. The affidavit of Pulaski County Prosecuting Attorney Murphy" }, { "docid": "10330708", "title": "", "text": "that the plaintiffs equal protection claim is insufficiently pled. There are no allegations regarding similarly situated entities which were treated differently from the plaintiffs. See A.B.C. Home Furnishings, Inc. v. Town of East Hampton, 947 F.Supp. 635 (E.D.N.Y.1996). In fact, there are no allegations regarding similarly situated entities at all. Accordingly, the defendants’ motion to dismiss the plaintiffs’ equal protection claim, pursuant to Rule 12(b)(6), is granted. D. Section 1983/Monell Claim Against All Defendants Raising the same allegations set forth in the First Cause of Action, the plaintiff alleges that those acts “are and constitute official acts and policy of the municipal entities which are defendants herein.” This claim also fails as a matter of law. A Section 1983 claim made against a municipality must also allege the deprivation was caused by a custom or policy of the municipality, and may not simply be based on a theory of respondeat superior. Monell v. Dep’t of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Villante v. Dep’t of Corrections, 786 F.2d 516, 519 (2d Cir.1986). Applying such principles to the Complaint, the Monell claim must be dismissed. The plaintiffs do not proffer any facts in support of the conclusory allegation that the defendants’ conduct amounts to a custom or policy, or that this custom or policy caused the plaintiffs’ injuries. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993) (noting that “[t]he mere assertion ... that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference”). This is true even under the liberal notice pleading standard set forth in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Simply stated, “bald assertions and conclusions of law” do not prevent the dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6). First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994). For these reasons, the defendants’ motions to dismiss the Monell claim are granted. E." }, { "docid": "16491160", "title": "", "text": "rejected a heightened pleading standard for § 1983 claims against a municipality. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 165-66, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Courts in this district have affirmed this principle post-Twombly. See Eckert v. City of Chicago, 2009 WL 1409707, at *6 (N.D.Ill. May 20, 2009); Jones v. Bremen High Sch. Dist. 228, 2009 WL 537073, at *4 (N.D.Ill. Mar. 4, 2009). Thus, an official capacity claim can survive even with conclusory allegations that a policy or practice existed, so long as facts are pled that put the defendants on proper notice of the alleged wrongdoing. McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir.2000). In this case, Defendants contend that Plaintiffs official liability claims against all Defendants are deficient. As to Counts I and II against Andrews and Dart, Defendants urge that they contain unsupported conclusions that Defendants acted with deliberate indifference by failing to maintain appropriate suicide prevention policies. However, given the above standards, the Court disagrees. Plaintiffs Complaint alleges that Andrews and Dart were responsible for the care and management of the prisoners at Cook County Jail, and had policymaking authority to implement appropriate procedures to do so. Plaintiff further alleges that Andrews and Dart acted with deliberate indifference by failing to institute suicide prevention practices at Cook County Jail, and elaborates six specific examples of inadequate procedures as well as the failure to adequately monitor the jail cells. Plaintiff claims that Hopkins’ suicide was the result of this direct indifference. Plaintiff has clearly gone beyond bare legal conclusions and provided Defendants with fair notice of the basis for her claim. Plaintiffs assertions are therefore sufficient to establish official capacity claims against Andrews and Dart. However, with respect to Counts IV-VI against Officers Dormer, McVey, and Sandefur, Defendants correctly point out that no policy, practice, or custom is alleged. Rather, Counts IV-VI assert that the individual officers willfully or recklessly enabled Hopkins to commit suicide, implicating individual capacity claims. Nor does the Complaint allege that Donner, McVey, or Sandefur acted with decision-making authority. Therefore, Plaintiffs" }, { "docid": "3945882", "title": "", "text": "of Review § 5.04 (2d ed.1991) (discussing the standards for granting summary judgment that have emerged from Celotex, Anderson, and Matsushita). DISCUSSION [¶ 9] I. 42 U.S.C. § 1983 Liability of the City of Rapid City [¶ 10] A. Pleading Requirement [¶ 11] Rapid City argues that the complaint does not allege that Sehlimgen’s dismissal was caused by an unconstitutional city custom or policy and therefore, summary judgment should be granted to Rapid City. In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the Supreme Court held that a heightened pleading standard was not required for claims alleging a violation of 42 U.S.C. § 1983. Federal Rule of Civil Procedure 8(a)(2) requires a short and plain statement of the claim showing the pleader is entitled to relief. Id. at 168, 113 S.Ct. 1160. A particularity requirement is necessary only in cases involving fraud or mistake. Id.; Fed.R.Civ.P. 9(b). See also Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995); Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir.1993). The allegations in Schlimgen’s complaint are sufficient to meet the pleading requirements of Rule 8(a)(2). [¶ 12] B. Custom or Policy Requirement [¶ 13] Rapid City claims that Schlimgen has no evidence to demonstrate the existence of a custom or policy to deprive Schlimgen of his constitutional right to free speech. A municipality may be held liable under § 1983 only if a municipal custom or policy caused the deprivation of a right protected by the constitution or federal laws. Monell v. Department of Social Serv., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). “A policy may be either a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the municipality’s governing body.” Angarita v. St. Louis County, 981 F.2d 1537 (8th Cir.1992) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). Municipalities may be subjected to § 1983 liability by actions of municipal officials who have final policy-making authority. City of St. Louis v." }, { "docid": "2931076", "title": "", "text": "adding a count seeking liability of the City under § 1983. In the second amended complaint Mr. Latuszkin adopted by reference his previous allegations and further alleged that the CPD had “deliberately failed or refused to satisfy” its duty to regulate its officers so as to prevent them from depriving people of their constitutional rights. Mr. Latuszkin asserted that this failure reflected a “policy, procedure, and practice of deliberate indifference” to such rights and was the foreseeable cause of Mrs. Latuszkin’s death. In response, the City removed the case to federal court. In August 2000 the district court granted the City’s motion to dismiss Mr. La-tuszkin’s § 1983 claim. The district court read Mr. Latuszkin’s complaint as an attempt to allege a widespread practice of the City so permanent and well settled as to constitute a custom of the City. The court, citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 820, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), held that Mr. La-tuszkin failed to state a claim under § 1983 because he had not alleged that the practice caused more than a single constitutional violation. Therefore, the district court dismissed Mr. Latuszkin’s § 1983 claim and remanded his state law claims to state court. On appeal Mr. Latuszkin argues that the district court construed his complaint too narrowly in finding that he alleged only one incident of unconstitutional conduct. He asserts that the municipal policy at issue is the City’s widespread practice of consciously disregarding unlawful activity by its police officers, not simply that the City is failing to stop the parties. Mr. Latuszkin asserts that the parties are evidence of the City’s policy. Mr. Latuszkin argues that these allegations sufficiently state a claim under the notice pleading standard for § 1983 municipal liability suits. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). This court reviews a 12(b)(6) dismissal de novo, taking all the well-pleaded allegations as true. See McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.1995). A plaintiffs complaint in a §" }, { "docid": "3405798", "title": "", "text": "so permanent and well settled as to constitute a ‘custom or usage’ with the force of law; or (3) an allegation that the constitutional injury was caused by a person with ‘final policymaking authority.’ ” Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir.1994) (citations and quotation omitted). Although claims of municipal liability need not be pled with a great factual specificity, Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir.1995) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, -, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993)), the Federal Rules nonetheless require a plaintiff to allege sufficient facts to support the existence of a municipal policy, Baxter by Baxter, 26 F.3d at 736. Briggs does not contend that an explicit written policy of racial discrimination existed at NSSD. Rather, she claims that discrimination was so pervasive that it constituted a practice or custom condoned by NSSD, and that the allegedly unconstitutional acts were committed by final policymakers. With regard to her first argument, we doubt that Briggs will be able to prove the sort of widespread discriminatory conduct that must be shown to support an inference that the policymakers at NSSD condoned the termination of employees because of their race. For example, in McNabola v. Chicago Transit Auth., 10 F.3d 501, 511-12 (7th Cir.1993), the evidence showed that at least forty-seven white employees complained to the CTA’s Board about their terminations, that more than seventy percent of the attorneys hired by the CTA were black, that white employees were assigned no new cases, and that final employment decisions were made by the Board itself. The Seventh Circuit affirmed a jury verdict against the CTA on a claim of reverse discrimination, although it conceded that the evidence in the case was “very close.” Id.; see also Allen v. City of Chicago, 828 F.Supp. 543, 562 (N.D.Ill.1993) (allegations that sixty-two individuals from different city departments suffered adverse employment decisions because of race, and that various department heads acted discriminatorily over an extended period of time, were sufficient to state claim" }, { "docid": "23440845", "title": "", "text": "physical force might ensue between Sergeant Krane and Lanigan. The complaint does not allege, however, any further acts of physical force by Sergeant Krane beyond the alleged push and poke, or any threats of further force by Sergeant Krane. We do not believe that Chief Robertson was forced to throw himself between Sergeant Krane’s finger and Lani-gan’s body to interrupt the imminent poke in order to avoid liability under § 1983. We believe that given the detañed añegations in the complaint, Lanigan has pleaded himself out of court in terms of his claim against Chief Robertson. See Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir.1994). As with Officer Wasek, we have no occasion to consider whether Chief Robertson is entitled to qualified immunity. V. Village of East Hazel Crest Lanigan’s complaint also aUeges that the Vñlage and the officers in their official capacities deprived Lanigan of his rights under the Fourth, Fifth and Fourteenth Amendments as a result of the Village’s policy of inadequately supervising and training its police officers. In Monell v. Dept. of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978), the Supreme Court held that Congress intended municipalities and other local government units to be “persons” within the purview of § 1983, and thus amenable to suit under § 1983. The Court concluded that municipalities could not be hable under § 1983 on a respondeat superior theory, but could be ha-ble if action pursuant to an official pohcy or custom of the municipality causes a constitutional tort. Id. at 690-91, 98 S.Ct. at 2035-36; Sivard v. Pulaski County, 17 F.3d 185, 188 (7th Cir.1994). “[W]hen execution of a government’s policy or custom, whether made by its lawmakers, or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury ... the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. However, “[bjoilerplate allegations of a municipal policy, entirely lacking in any factual support that a city policy does exist, are insufficient.” Sivard, 17 F.3d at" }, { "docid": "23440848", "title": "", "text": "such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” Id. at 389, 109 S.Ct. at 1205. The Court elaborated: [I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. Id. at 390, 109 S.Ct. at 1205. We are mindful that our conventional system of notice pleading applies to § 1983 actions against municipalities and that there is no heightened pleading standard in these cases. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165, 113 S.Ct. 1160, 1161-62, 122 L.Ed.2d 517 (1993). Accordingly, we recently reversed a district court for “jump[ing] the gun” when it dismissed a § 1983 action against the City of Chicago pursuant to Rule 12(b)(6). See Sledd v. Linsday, 102 F.3d 282, 288 (7th Cir.1996). In Sledd, the complaint alleged that the City of Chicago maintained official policies and customs which violated the plaintiffs rights. The district court granted the City of Chicago’s motion to dismiss for failure to state a claim upon which relief could be granted. We reversed the district court’s dismissal because we believed the district court had “jumped the gun” in light of the complaint’s detailed allegations. We heeded the Supreme Court’s instruction in Leatherman that plaintiffs need only comply with conventional notice pleading in § 1983 cases against municipalities. We recalled that plaintiffs should be allowed to go forward if relief could be granted under any set of facts that could be proved consistent with the allegations in the complaint. We therefore concluded that it was error to dismiss the claim solely on the pleadings and indicated that the parties should be entitled to develop a record suitable for a summary judgment motion, at which point the district court would be “in a far better position to see if Sledd [could] back" }, { "docid": "4427958", "title": "", "text": "(holding that a single incident can establish municipal liability in the absence of proof of a policy or custom only if it is “unusually brutal or egregious”). Perez argues that under the Supreme Court’s decision in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993), his complaint is only required to contain a bare assertion that the challenged action was taken pursuant to a municipal policy or custom without any indication of the nature of the policy or custom. This contention is without merit. Leatherman held only that complaints against municipal entities are not subject to a “heightened pleading standard” beyond the requirements of Fed.R.Civ.P. 8. Id. However, Rule 8 requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Perez’ claim, while short, is not plain, and provides no notice concerning the nature of the policy or custom under which defendants’ actions were allegedly taken. Even under the liberal notice pleading standard set forth in Leatherman, the Complaint fails to adequately allege a policy or custom. See Dwares, 985 F.2d at 100-01; Economic Opportunity Commission of Nassau County, Inc. v. County of Nassau, Inc., 47 F.Supp.2d 353, 370-71 (E.D.N.Y.1999) (granting motion to dismiss Monell claim because plaintiffs “do not proffer any facts in support of the conclusory allegation that the defendants’ conduct amounts to a custom or policy, or that this custom or policy caused the plaintiffs’ injuries”); Morales v. New York City Police Department, No. 97 Civ. 7151 MGC, 2000 WL 10436, at *2 (S.D.N.Y. Jan. 6, 2000) (holding that even under Leatherman “the plain tiff must still allege some facts that make possible the inference of a policy giving rise to municipal liability”); Oparaji v. City of New York, No. 96 Cv. 6233, 1997 WL 139160, at *3 (E.D.N.Y. Mar. 21, 1997), aff'd, 152 F.3d 920 (1998) (same); Wilson v. 103rd Precinct, No. CV 94 4447, 1996 WL 204510, at *1 (E.D.N.Y. Apr. 18, 1996), aff'd, 182 F.3d 902 (1999) (same). Accordingly, the complaint is dismissed with respect" }, { "docid": "12782621", "title": "", "text": "on a theory of respondeat superior. Monell v. Dep’t of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, a municipality may only be liable for a constitutional tort where the action occurred pursuant to an official municipal policy. Id. In order to hold the municipality liable, the municipal policy must be the “moving force” behind the constitutional violation. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Either an affirmative policy or a policy of inaction can suffice to support municipal liability. See Doe v. Claiborne County, 103 F.3d 495, 508 (6th Cir.1996). Under the liberal pleading requirements of the federal rules, all a plaintiff need do to set forth a cognizable § 1983 claim against a municipality, then, is allege that agents of the municipality, while acting under col- or of state law, violated the plaintiffs constitutional rights, and that a municipal policy or policy of inaction was the moving force behind the violation. No further factual specificity is required at the initial pleading stage. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167-69, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). The court finds that the Amended Complaint sufficiently sets forth a § 1983 claim upon which relief could be granted against the City. The Amended Complaint alleges that agents of the City, while acting under color of state law, violated Alexander’s constitutional rights. Earlier in this order, the court held that plaintiffs’ constitutional tort claims against the officers might have merit, and denied the officers’ motion to dismiss on that ground. Plaintiffs then set forth ten alleged City policies of inaction that plaintiffs allege proximately caused Alexander’s death. Nothing else is required at this juncture. Plaintiffs also allege that the City should be liable since it ratified the officers’ conduct when it failed to reprimand, discipline or terminate the officers involved. The City argues that this claim should be dismissed because subsequent ratification could not have caused Alexander’s death. The City’s argument is well taken. Even if plaintiffs could prove that" }, { "docid": "7834213", "title": "", "text": "the front door, handcuffed Mr. Mosby, and assaulted him, causing physical injury. Mr. Mosby was then transported to the police station. After being questioned and denied medical attention for 30 minutes, Mr. Mosby was taken by paramedics to the hospital where he was treated; he was then returned to the police station. Early the next morning Mr. Mosby was released from police custody. Mr. Mosby filed this lawsuit alleging Fourth Amendment violations, false imprisonment, willful and wanton conduct, and malicious prosecution. The only claim that appears to be brought against the City is for liability under § 1983. The City moves to dismiss on the ground that Mr. Mosby has failed to state a claim for municipal liability. Municipal Liability under § 1983 A municipality may not be held liable for the actions of an employee under § 1983 on a theory of respondeat superior. Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality may, however, be held liable if the plaintiff can show that he or she suffered a constitutional deprivation that was caused by an official policy, custom, or usage of the municipality. Id. at 690-91, 98 S.Ct. 2018. In his claim against the City for respondeat superior liability, Mr. Mosby alleges that Officer Bell implied he was following the custom and practice of the police department. In count I Mr. Mosby alleges that “it is the custom and practice of Officers of the Chicago Police Department to abuse their power and violate constitutional rights of citizens on an ongoing basis.” (Am.Compl.¶ 43). lie further alleges that the City is aware of this practice and “has failed to act to remedy the pattern of unconstitutional behavior.” (Am.Compl.¶ 44). Although notice pleading is sufficient to bring a § 1983 claim, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the complaint must give the defendant notice of the grounds on which the claim rests. “Boilerplate allegations of a municipal policy, entire lacking" } ]

[ { "docid": "5395305", "title": "", "text": "to the act, become evidence. It is no longer a question of the quality but of the quantity of evidence,” and concluded that “in order to convict the defendant of the crime charged in the indictment, if is not necessary on the part of the prosecution to produce a living witness; if the jury shall believe the evidence from the written testimony sufficient to establish the charge that the defendant made a false and corrupt oath as to the cost of the goods imported # % # *> In Hammer v. U. S., 271 U.S. 620, at page 627, 46 S.Ct. 603, at page 604, 70 L. Ed. 1118, the language is “That, in some cases, the falsity charged may be shown by evidence other than the testimony of living witnesses, is forcibly shown by the opinion of this court in United States v. Wood, 14 Pet. 430, 443, 10 L.Ed. 527. That case shows that the rule, which forbids conviction on the unsupported testimony of one witness as to falsity of 'the matter alleged as perjury, does not relate to the kind or amount of other evidence required to establish that fact. Undoubtedly in some cases documents emanating from the accused and the attending circumstances may constitute better evidence of such falsity than any amount of oral testimony.” In United States v. Buckner, 2 Cir., 118 F.2d 468, at page 469, the court said:' “ * * * the repeated admissions of the defendant that her testimony before the grand jury was false was a fair substitute for the confirmatory testimony which is generally required in perjury cases.” The court continued: “In United States v. Wood, 14 Pet. 430, 439, 441, 10 L.Ed. 527, * * *. The Supreme Court held that even a single witness to the corpus delicti is unnecessary when the truth of statements alleged to be perjured' is ‘directly disproved by documentary or written testimony springing from [the defendant] himself, with circumstances showing the corrupt intent. * * * ’ In that action the defendant’s own invoice book and letters contradicted the cost which was" } ]

[ { "docid": "22340810", "title": "", "text": "Attorney and defense counsel focused their summations on the September 30 statement. See Tr. 151, 167. Title 18 U. S. C. § 1621 provides: “Whoever— “(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or “(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; “is guilty of perjury and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.” In particular, Congress focused on the two-witness rule, under which “the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused.” Hammer v. United States, 271 U. S. 620, 626 (1926); accord, Weiler v. United States, 323 U. S. 606, 608-610 (1945). See S. Rep. No. 91-617, pp. 57-59 (1969). See id., at 110-111; n. 5, supra. In its entirety, the original version of § 1623 (a) provided: “Whoever, having taken an oath in any trial, hearing, or proceeding before any court or grand jury, in which a law of the United States authorizes the oath, knowingly falsifies fact, or makes any false, fictitious, or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.” S. 30, 91st Cong., 1st Sess., § 401 (1969). The provision of S. 1861" }, { "docid": "12837399", "title": "", "text": "course of the opinion. I. Constitutionality of 18 U.S.C. § 1628. Defendant, relying upon Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945), argues that 18 U.S.C. § 1623 is unconstitutional because it modifies the traditional “two-witness” rule for perjury convictions; which rule the defendant would have us find is constitutionally mandated. While we would agree with defendant that the “two-witness” rule has a long tradition in common law jurisdictions, see 7 Wigmore, Evidence, § 2040-43, we are unable to find it has been elevated to a constitutional principle and that Congress may not pass a statute in derogation of the rule. This conclusion is in accord with the principles enunciated in the cases relied upon by the defendant. In Wood v. United States, 39 U.S. (14 Pet.) 429, 439 (1840) the Supreme Court said regarding the traditional rule: “It is said to be an inflexible rule of the common law, applicable to every charge of perjury; that it cannot be changed but by the legislative power; that until some statutory change is made, courts must enforce it . . . . ” (emphasis supplied). And, almost a century later in Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926), the Court noted: “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed, and no enactment in derogation of it has come to our attention.” (footnote omitted). In Weiler v. United States, supra, relied upon by the defendant the Court refused the government’s request to abandon the rule, commenting, “we cannot reject as wholly unreasonable the notion that a conviction for perjury ought not to rest entirely upon ‘an oath against an oath’ ” and then went on to say, “[wjhether it logically fits into our testimonial pattern or not, the government has not" }, { "docid": "17881328", "title": "", "text": "as “House Report”], U.S. Code Cong. & Admin.News 1970, p. 4007; and note 94 infra. . See United States v. Lardieri, 506 F.2d 319, 324 (3d Cir. 1974). . Before the enactment of § 1623, federal law imposed upon perjury prosecutions the so-called two-witness rule, by which “the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused,” see Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118, 1120 (1926), and the direct-evidence rule, by which a perjury conviction could not be predicated entirely upon circumstantial as opposed to direct evidence, see Weiler v. United States, 323 U.S. 606, 608-610, 65 S.Ct. 548, 549-550, 89 L.Ed. 495, 497-498 (1945). Prior federal law also foreclosed the possibility of convicting a witness who had made two or more irreconcilably contradictory statements unless the Government proved extrinsically which of the statements was false. See, e. g., McWhorter v. United States, 193 F.2d 982, 983-984 (5th Cir. 1952). Congress enlarged the Government’s ability to obtain perjury convictions by abolishing the evidentiary restrictions and permitting contradictory statements without more to form the basis of prosecution. Senate Report, supra note 88, at 109-111, 149-150; House Report, supra note 88, at 33, 47-48; 116 Cong.Rec. at 589 (1970) (remarks of Senator McClellan); id. at 35292 (remarks of Representative Poff); 18 U.S.C. § 1623(c) (1976). . Senate Report, supra note 88, at 58, quoting President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 201-202 (1967). . See note 72 supra. . Senate Report, supra note 88, at 150; House Report, supra note 88, at 33, 47^8. . House Report, supra note 88, at 48, U.S. Code Cong. & Admin.News 1970, p. 4024. See also 116 (Cong.Rec. 589 (1970) (remarks of Senator McClellan) (“title IV encourages truth . by encouraging the correction of testimony without fear of prosecution”); id. at 351-96 (remarks of Representative Celler) (“[i]n order to encourage truthful testimony, the title, as amended, permits recantation to be a bar to a false declaration prosecution in" }, { "docid": "22197572", "title": "", "text": "the judgment. At the trial of petitioner, it was- satisfactorily shown that Trinz was sworn in the bankruptcy proceeding and there gave the testimony alleged to have been false and suborned. Trinz was the only witness called to prove the falsity and .subornation.- He testified that he gave the testimony alleged in the indictment; that it was not true, and that petitioner suborned him. At the close of all the evidence the petitioner moved the court to direct a. verdict in hiá favor on the ground that the uncorroborated testimony of Trinz was not sufficient to warrant a finding of •guilt. The motion was denied. And, on the request of the prosecution, the court charged the jury that the law did not require any corrobation of that testimony; and that, if believed, it was sufficient. The question of law. presented is whether the unsupported oath of Trinz at the trial of petitioner is sufficient to justify a finding that the testimony given by him before the referee was false. The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed, and no enactment in derogation of it has. come to our attention. The absence of such legislation indicates that it is sound and has been found satisfactory in practice. On the issue . of falsity the case presented is this. On the first occasion Trinz testified that he had loaned money to the bankrupt and that she had given him a note. At the trial he swore that his statement before the referee was not true. The contest is between the two oaths with nothing to support either of them. The question is not the same as that arising in a prosecution for perjury where the defendant’s own acts, business transactions, documents or correspondence are brought forward to establish the falsity of his oath alleged as perjury." }, { "docid": "648971", "title": "", "text": "the defendant and that a court reporter was present throughout the investigation. The reporter testified that he had been present when the defendant appeared before the grand jury, that he had seen defendant take the oath but that the notes of the testimony did not show that the defendant had been sworn. Certainly a jury could find from all this that the oath had actually been administered. See United States v. Gardiner, C.C. Dist.Col.1853, 25 Fed.Cas. pages 1245, 1246-1247, No. 15,186a. Reversal is also urged on the ground that the trial judge failed to instruct the jury to acquit unless they found that defendant had been sworn. But the trial judge told the jury that “Perjury, among other things, is false swearing in a material matter requiring affidavit or oath to be taken, with the knowledge on the part of the defendant that the false swearing is false.” If the defendant desired a more explicit instruction on this point, he could have presented a request for charge, but he offered none. The fact that the judge did not enlarge upon the point, in the absence of request for anything further, is not a ground for reversal. 2. Sufficiency of Testimony The rule in perjury cases is that the falsehood must be proved by two witnesses or one witness and corroborating evidence. Weiler v. United States, 1945, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, 156 A.L.R. 496; Hammer v. United States, 1926, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118. The prosecution offered testimony in this case: (a) By Mrs. Wilhelmina Azzarano. She was the firm’s bookkeeper and she stated that she had seen $50 pass from the defendant to Frank Sales, a Maritime Commission employee, at a Christmas party in 1944. (b) By Frank Sales. He said that upon another occasion he had received $125 from the defendant but that this was the only occasion on which he had ever received money from the defendant. Defendant says that this is insufficient because the two-witness rule must apply to each alleged passing of money. This very point was" }, { "docid": "17934323", "title": "", "text": "erred in refusing to charge the time-honored “two-witness rule.” We begin our analysis with the recognition that there are distinctions between the crime of general federal perjury, 18 U.S.C. § 1621, and the recently-created crime, “False declarations before grand jury or court”, 18 U.S.C. § 1623. One difference concerns “[t]he general rule in prosecutions for perjury [under § 1621] . . . that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury.” Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926). Weiler v. United States, 323 U.S. 606, 610, 65 S.Ct. 548, 550, 89 L.Ed. 495 (1945), reiterated the Hammer holding and reemphasized: “The rule has long prevailed, and no enactment in derogation of it has come to our attention. The absence of such legislation indicates that it is sound and has been found satisfactory in practice.” Legislation did come forward, however, in the Organized Crime Control Act of 1970, of which 18 U.S.C. § 1623 is a part, Title IV, Section 401(a), October 15, 1970, 84 Stat. 932. The Act makes it a crime for one to knowingly make “any false material declaration” before any court or grand jury of the United States. Section 1623(e) specifically provides: “Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.” The legislative history discloses: “This title [Title IV, False Declarations] is intended to facilitate Federal perjury prosecutions and establishes a new false declaration provision applicable in Federal grand jury and court proceedings. It abandons the so-called two-witness and direct evidence rule in such prosecutions and authorizes a conviction based on irreconcilably inconsistent declarations under oath . . . .” 1970 U.S.Code Cong. & Ad.News pp. 4007, 4008. Abolition of the “two-witness rule” for prosecutions under § 1623 is not the only distinction between the two statutes. As we noted in United States" }, { "docid": "21190448", "title": "", "text": "statement was made contained an option to purchase.” Appellant first contends that the court erred in failing to grant the motion for acquittal because the Government had failed to sustain its burden of proof. In making this argument appellant points out that Albert testified that in the initial conversation he asked appellant if the lease contained an option to purchase and that appellant denied that it did, but that appellant testified that no such question was asked him and that the other person present — his accountant — testified that he had no recollection of this occurrence. Appellant contends that the perjury rule requiring confirmation by two witnesses or corroboration in addition to one witness applies, and that since Albert’s testimony concerning his conversation with appellant is uncorroborated it is insufficient to support the charges made. It is admitted by appellant, however, that this court has held to the contrary on several occasions, and that the Tenth Circuit has followed this circuit upon the same subject. Relying on statements appearing in the dissenting opinion of the Tenth Circuit case, the appellant urges us to reconsider our prior decisions on this point and to adopt a different view. This we decline to do. ■ We adhere to our prior decisions and we hold that the perjury corroboration rule does not apply to prosecutions under 18 U.S.C.A. § 1001. Fisher v. United States, 254 F.2d 302, (9th Cir. 1958); De Casaus v. United States, 250 F.2d 150 (9th Cir. 1957); Fisher v. United States, 231 F.2d 99 (9th Cir. 1956); Todorow v. United States, 173 F.2d 439 (9th Cir. 1949). See also United States v. Killian, 246 F.2d 77 (7th Cir. 1957) and Travis v. United States, 269 F.2d 928 (10th Cir. 1959), rev’d on other grounds, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961). In addition to his contention for the perjury corroboration rule the appellant argues that when a statement alleged to be in violation of section 1001 has not been made under oath and is proved only by the testimony of a single witness which testimony is" }, { "docid": "22176085", "title": "", "text": "appellant’s rights, because she thereby “obtain [ed] the most reliable evidence possible of a conversation” in which she was a participant and which she was free to disclose through her testimony — circumstances similar to those in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, (1963). See also United States ex rel. Molinas v. Mancusi, supra 370 F.2d at 602-603; Hurst v. United States, 370 F.2d supra at 165. Equally lacking in merit is appellant’s final argument that a conviction under 18 U.S.C. § 1503 must be supported by the testimony of at least two witnesses that the assertedly false statement which the appellant sought to procure was in fact false. He asserts that because two witnesses are required to testify to the falsity of testimony in a prosecution for perjury, 18 U.S.C. § 1621, and for subornation of perjury, 18 U.S.C. § 1622, the same rule should apply to the present case. As the Court of Appeals for the Ninth Circuit concluded in rejecting the same argument in Ca-trino v. United States, 176 F.2d 884 (9 Cir. 1949), the position is untenable because the crimes are essentially different. It is a necessary element of both the crimes of perjury and subornation of perjury that the false testimony be given under oath and it is the falsity of swearing or the formal affirmation which must be established by the testimony of two credible witnesses or one such witness plus corroborating circumstances. See Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945); Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118 (1926). Section 1503, however, punishes merely the endeavor to obstruct justice; it is not necessary that the defendant succeed in his attempt for a conviction to be sustained. See United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 65 L.Ed. 553 (1921); Roberts v. United States, 239 F.2d 467, 470 (9 Cir. 1956); Catrino v. United States, supra 176 F.2d at 886. The judgment of conviction is affirmed. . 18 U.S.C. § 1503 provides:" }, { "docid": "17934326", "title": "", "text": "equally clear that § 1623 is a species of perjury. Indeed, as previously rehearsed, the intent of § 1623 was to “facilitate Federal perjury prosecutions.” 1970 U.S.Code Cong. & Ad. News, supra, at p. 4008. Therefore, we hold that the words “any perjury” in § 1622 include the making of any false declaration under § 1623. Having disposed of appellant’s statutory crime argument, we turn to his “two-witness rule” contention. Appellant concedes, as he must, that Congress eliminated the two witness requirement for prosecutions under the false declaration statute, § 1623. However, he somehow believes that the crime of subornation of a false declaration, in violation of 18 U.S.C. § 1622, requires corroboration. Had appellant been indicted for subornation to commit perjury under the general perjury statute, § 1621, his argument would have had force. An essential element of this crime is proof that perjury was committed; and “[t]he general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury.” Hammer v. United States, supra, 271 U.S. at 626, 46 S.Ct. at 604 (emphasis added). “To hold to the [two-witness] rule in perjury and to deny its application in subornation cases would lead to unreasonable results.” Ibid, at 628, 46 S.Ct. at 605. Thus, Hammer held that the same rule of evidence must apply to both crimes — perjury and subornation of perjury. But that is not this case. Here appellant was indicted for suborning Preis to make a false declaration before a grand jury. Section 1623 expressly abrogates the traditional “two-witness” rule. To deny this rule’s application in § 1623 prosecutions and to require' its application in false declaration, subornation prosecutions would undeniably lead to unreasonable results. Using the words of the Court in Hammer: “Obviously the same rule of evidence in respect of establishing the falsity of the matter alleged as [a false declaration] must apply to both.” 271 U.S. at 628, 46 S.Ct. at 605. III. The grand jury did not name Anthony Statile" }, { "docid": "4176778", "title": "", "text": "replying to the court’s question “Did he give you $1.50 to vote?” answered “No, sir,” and to the further question “For what purpose did he give you the $1.50?” answered “I do not know. He gave it to me. Mr. Palese was nice to my husband and I, he used to give us coal; he often gave us money and food.” The Government then rested and the defendant moved for a directed verdict, which motion was denied by the court. After testimony by the defendant and rebuttal testimony on behalf of the Government the jury found the defendant guilty. The defendant has appealed and urges that the Government’s evidence did not meet the standard required in perjury cases. The rule of evidence in perjury cases presents an almost unique exception to the general rule that evidence which is sufficient to convince the jury of the defendant’s guilt beyond a reasonable doubt is sufficient to sustain a conviction. Originally it was necessary in order to sustain a conviction for perjury that the falsity of the oath be proved by the sworn testimony of two or more witnesses. This rule was early modified so as to permit a conviction upon the sworn testimony of one witness if that testimony was supported by proof of corroborative circumstances. It has also been held that the production of documentary or written testimony springing from the defendant himself may take the place of a living witness. United States v. Wood, 1840, 39 U.S. 430, 14 Pet. 430. But the necessity for some corroboration has never been eliminated. Thus in Hammer v. United States, 1925, 271 U.S. 620, 626, 627, 46 S.Ct. 603, 604, 70 L.Ed. 1118, the Supreme Court said: “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed and no enactment in derogation of it has come to our attention." }, { "docid": "12837400", "title": "", "text": "statutory change is made, courts must enforce it . . . . ” (emphasis supplied). And, almost a century later in Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926), the Court noted: “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed, and no enactment in derogation of it has come to our attention.” (footnote omitted). In Weiler v. United States, supra, relied upon by the defendant the Court refused the government’s request to abandon the rule, commenting, “we cannot reject as wholly unreasonable the notion that a conviction for perjury ought not to rest entirely upon ‘an oath against an oath’ ” and then went on to say, “[wjhether it logically fits into our testimonial pattern or not, the government has not advanced sufficiently cogent reasons to cause us to reject the rule.” Weiler at 609, 65 S.Ct. at 550. A study of these decisions leads us to the conclusion that the “two-witness” rule in perjury cases is not constitutionally mandated. Where the framers of the Constitution felt a rule of evidence should have constitutional protection they specifically provided that protection in unambiguous terms. We, therefore, find that elimination of the rule by 18 U.S.C. § 1623(e) was within the power of Congress. This conclusion is in accord with the other courts that have considered the question. United States v. Ceccerelli, 350 F.Supp. 475 (W.D.Pa. 1972); United States v. McGinnis, 344 F.Supp. 89 (S.D.Tex.1972). Defendant also argues that § 1623 is unconstitutional as a denial of equal protection. He contends that because a defendant may be punished under 18 U.S.C. § 1621 for perjury for any sworn testimony, which could include those situations covered by § 1623, there is an equal protection violation, since all persons who commit the same crime must be subject to the same" }, { "docid": "10442002", "title": "", "text": "estimate was $30,000, made up of $20,000 in Union Planters Bank, $7000 from the Bank of Commerce, and $3000 for fifty or sixty bales of Barton cotton included in the sale of 291 bales of cotton to Leftwich. Under the decisions relating to perjury, “an uncorroborated confession or evidence of perjury, given by one witness only, does not as a matter of law establish beyond a reasonable doubt the commission of a crime * * Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 606, 85 L.Ed. 876. In Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118, the court said: “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal.” In Goins v. United States, supra, 99 F.2d at page 148, the court said: “On the second point it may be assumed that the requested instruction embodied correctly the rule of law as applied in the federal courts, where it has been uniformly held that the uncorroborated oath of one witness is not enough to establish the falsity of the oath as to which perjury is charged, and that, except where the falsity of such oath is indisputably established, as by documentary evidence, it must be shown by the testimony of at least two witnesses, or by the testimony of a witness corroborated by circumstances proved by independent testimony.” The court then cited a number of authorities supporting the proposition. Appellant does not, in respect to the matters in question in count 4, admit that his statement was false. Actually, he reiterated that the statement that he received about $30,000 from the Barton cotton was correct. His income tax return for 1942 indicated that he received that year $47,412.33 but he explained, that the difference between that figure and the $30,-000, which he admitted he received from the Barton cotton, was proceeds" }, { "docid": "4176779", "title": "", "text": "be proved by the sworn testimony of two or more witnesses. This rule was early modified so as to permit a conviction upon the sworn testimony of one witness if that testimony was supported by proof of corroborative circumstances. It has also been held that the production of documentary or written testimony springing from the defendant himself may take the place of a living witness. United States v. Wood, 1840, 39 U.S. 430, 14 Pet. 430. But the necessity for some corroboration has never been eliminated. Thus in Hammer v. United States, 1925, 271 U.S. 620, 626, 627, 46 S.Ct. 603, 604, 70 L.Ed. 1118, the Supreme Court said: “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed and no enactment in derogation of it has come to our attention. The absence of such legislation indicates that it is sound and has been found satisfactory in practice.” It is, therefore, settled for us that the oral testimony of one witness is insufficient unless corroborated to sustain a conviction for perjury. We note, however, that the rule, although thus firmly established in the federal courts, has been subjected to much well reasoned criticism. 7 Wigmore on Evidence, 3rd Ed., §§ 2040-2043; Marvel v. State, 1925, 33 Del. 110, 3 W.W.Harr. 110, 131 A. 317, 42 A.L.R. 1058. Thus in Goins v. United States, 4 Cir., 1938, 99 F.2d 147, 149 the court said: “It may well be doubted whether any distinction should now be made between the proof necessary to convict of perjury and that necessary to convict of other crimes. * * * The old ‘oath against oath’ reasoning of the earlier decisions is without force now that the defendant is allowed to take the stand and that corroboration sufficient to satisfy the jury of the falsity of the oath may well arise from his" }, { "docid": "22047263", "title": "", "text": "disclose any testimony by Mrs. King of “personal knowledge” that the defendant had a safe deposit box. On the other hand it shows clearly that her testimony was based entirely on the bank’s records of which she was custodian. In our opinion, however, it is immaterial that Mrs. King did not testify as to her “personal knowledge”. The bank’s records were competent evidence and the government sustained its burden of proof by their presentation. We do not agree with the defendant’s novel argument that the bank’s records so clearly established the truth of the defendant’s testimony before the Grand Jury, as to require an acquittal here. On the other hand, we are of the opinion that it was for the jury to determine whether or not the government’s evidence established that the defendant had willfully intended to deceive the Grand Jury on the issue as to whether he did or did not have a safe deposit box. - The requirements of the “two-witness” rule were met when the government introduced the two sets of records relating to the rental and use of the safe deposit box even though there was an absence of a living witness as to the situation. As we stated in Phair v. United States, 3 Cir., 1932, 60 F.2d 953, 954: “A living witness is no longer necessary to a conviction for perjury where the defendant’s own acts, business transactions, documents, or correspondence show that his oath charged to be perjury is false.” Earlier, in Hammer v. United States, 1926, 271 U.S. 620, 627, 46 S.Ct. 603, 604, 70 L.Ed. 1118, it was said: “Undoubtedly in some cases documents emanating from the accused and the attending circumstances may constitute better evidence of such falsity [of the matter alleged as perjury] than any amount of oral testimony.” See also United States v. Nessanbaum, 3 Cir., 1953, 205 F.2d 93 and United States v. Palese, 3 Cir., 1943, 133 F.2d 600, 602. In the latter case we said: “It has also been held that the production of documentary or written testimony springing from the defendant himself may take" }, { "docid": "21769195", "title": "", "text": "42 A.L.R. 1058; Goins v. United States, 4 Cir., 1938, 99 F.2d 147; United States v. Palese, 3 Cir., 1943, 133 F.2d 600, 602. United States v. Wood, 1840, 39 U.S. 430, 10 L.Ed. 527; United States v. Buckner, 2 Cir., 1941, 118 F.2d 468. Hammer v. United States, 1926, 271 U.S. 620, at pp. 626, 627, 46 S.Ct. 603, at page 604, 70 L.Ed. 1118, in which Justice Butler said: “The general rule-in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed, and no enactment in derogation of it has come to our attention. The absence of such legislation indicates that it is sound and has been found satisfactory in practice.” For a comprehensive account of the origin and history of the Quantitative Rule in the Daw of Evidence see Wig-more on E'vidence (Third Edition) Yol. VII, §§ 2030-2043. See United States v. Wood, 1840, 39 U.S. 430, 440, 10 L.Ed. 527. We need not here consider the rule relating to persons accused of treason. The rule, embedded in Article III, Section 3, of the Constitution, that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act” was derived directly from prior British Statutes which were passed expressly for the protection of persons accused of treason. Since the two rules, although apparently similar, were derived from wholly different sources and were adopted for wholly different reasons, the construction to be placed upon the treason rule has no bearing upon the effect to be given to the rule applicable in perjury cases. In Goins v. United States the trial judge refused the defendant’s request that the jury be instructed to the effect that the testimony of at least two witnesses, or of one credible witness and strong corroborating circumstances was necessary to a conviction of perjury. The Circuit Court of" }, { "docid": "22142046", "title": "", "text": "Mr. Justice Black delivered the opinion of the Court; This Court stated in Hammer v. United States, 271 U. S. 620, 626, that “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment.” The question here is whether it is reversible error to refuse to charge the jury to this effect. The petitioner was convicted of perjury in a federal district court. In a prior criminal proceeding for violation of Office of Price Administration regulations he had testified that he had neither bought nor had in his possession in March, 1942, certain automobile tires. He further testified that although he had signed a notarized letter in which he stated that he had purchased the tires, he was not in reality the purchaser, but had merely lent the money for their purchase, and had signed the letter as an accommodation. The jury acquitted him and he was then indicted for perjury. The indictment charged that his testimony with reference to the tire transaction was false. In the perjury trial the petitioner reiterated his former testimony as to the tire transaction. Several government witnesses gave testimony from which the jury could have found that petitioner was in fact the purchaser. When the evidence was completed, petitioner requested the trial judge to give the following instruction to the jury: “The Government must establish the falsity of the statement alleged to have been made by the defendant under oath, by the testimony of two independent witnesses or one witness and corroborating circumstances. Unless that has been done, you must find [the] defendant not guilty.” This instruction was refused, and the trial judge in his oral charge completely omitted any reference to the “two witness rule” in perjury cases. The petitioner was convicted, and the Circuit Court of Appeals affirmed on the ground that it was for the court to determine whether the quantitative rule of evidence in perjury had been satisfied, that it had been satisfied in this case, and that" }, { "docid": "10442001", "title": "", "text": "be absent, but as applicable both to counts 1 and 3, there was substantial evidence upon this feature of wilfulness as well as upon that of falsity, which would require tlie submission of the case to - the jury under appropriate instructions. The complaint touching the denial of requested instructions will be hereinafter considered. As to count 4, appellant testified in a deposition prior to the hearing in the civil action, and prior to the filing of his own pleadings, in response to a request by the Government for leave to take his deposition and for the production of documents, pursuant to Rule 26 of the Rules of Civil Procedure. We do not think that we are required to determine whether the pro cedure followed in taking the deposition was a nullity, as claimed by appellant. The crucial question is, whether the evidence adduced by the Government in support of count 4 was sufficient. The purpose of taking the deposition was to ascertain how much money appellant had netted out of the Barton cotton. Appellant’s estimate was $30,000, made up of $20,000 in Union Planters Bank, $7000 from the Bank of Commerce, and $3000 for fifty or sixty bales of Barton cotton included in the sale of 291 bales of cotton to Leftwich. Under the decisions relating to perjury, “an uncorroborated confession or evidence of perjury, given by one witness only, does not as a matter of law establish beyond a reasonable doubt the commission of a crime * * Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 606, 85 L.Ed. 876. In Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118, the court said: “The general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal.” In Goins v. United States, supra, 99 F.2d at page 148, the court said: “On the second" }, { "docid": "17934342", "title": "", "text": "be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. . It is clear from both Hammer and Weiler that the Supreme Court does not consider the evidentiary rule to be of constitutional dimension; the Court merely refused to depart from “[t]he special rule which ... is deeply rooted in the past centuries” in the “absence of legislation.” Weiler v. United States, supra, 323 U.S. at 608-10, 65 S.Ct. at 550. . Congress neither amended § 1622 nor enacted a new subornation statute expressly proscribing subornation to make a false declaration when it enacted § 1623 in 1970. . The government believes that Hammer v. United States, supra, lays appellant’s argument to rest. We disagree. Hammer held that the general federal perjury statute applies to federal bankruptcy proceedings. Bronston v. United States, 409 U.S. 352, 357, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). Unlike the case sub judice, the Hammer indictment did not specify whether the subornation charge was drawn under 29(b) of the Bankruptcy Act [now 18 U.S.C. § 152] or § 125 of the Criminal Code [now 18 U.S.C. § 1621], However, the Court found the allegations of the indictment were sufficient to charge an offense under either the perjury statute or the Bankruptcy Act. Accordingly, the omission in the indictment was immaterial; the defendant was charged with “subornation of perjury.” 271 U.S. at 625. Thus, the Court in Hammer had no occasion to, and did not, meet the precise issue before us. . Wigmore traces the ancestry of the two-witness requirement to the “Romanesque law of Continental Europe.” 7 J. Wigmore, Evidence § 2032, at 241 (3d" }, { "docid": "17934322", "title": "", "text": "before the grand jury and testified that a Stop & Save check in payment of the Writers Associates’ invoice represented payment to a group of women who demonstrated at the State Capitol in Trenton, New Jersey. Preis was later indicted for making false declarations before the grand jury, 18 U.S.C. § 1623. On advice of new counsel, he pleaded guilty to the indictment, and received permission to go back to the grand jury and tell the truth about his and Gross’ participation in the Cahill campaign. (T. 2021-31). The indictment against Gross followed. II. Count V of the indictment charged Gross with “suborn[ing] . . Preis to commit perjury, as that crime is defined in Section 1623 of Title 18,” in violation of 18 U.S.C. § 1622. Appellant attacks his conviction on this count on alternative grounds. He contends that Count V of the indictment must be dismissed because Congress has not made subornation to make a false declaration a crime. Alternatively, appellant takes the position that, if such subornation is a crime, the court erred in refusing to charge the time-honored “two-witness rule.” We begin our analysis with the recognition that there are distinctions between the crime of general federal perjury, 18 U.S.C. § 1621, and the recently-created crime, “False declarations before grand jury or court”, 18 U.S.C. § 1623. One difference concerns “[t]he general rule in prosecutions for perjury [under § 1621] . . . that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury.” Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926). Weiler v. United States, 323 U.S. 606, 610, 65 S.Ct. 548, 550, 89 L.Ed. 495 (1945), reiterated the Hammer holding and reemphasized: “The rule has long prevailed, and no enactment in derogation of it has come to our attention. The absence of such legislation indicates that it is sound and has been found satisfactory in practice.” Legislation did come forward, however, in the Organized Crime Control Act of 1970, of" }, { "docid": "21769194", "title": "", "text": "United States, 1929, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L. Ed. 692; United States v. Slutzky, 3 Cir., 1935, 79 F.2d 504. It is discretionary with, the trial judge to determine how wide a range should be allowed in cross-examination upon a matter collateral to the issue but which is tendered for the purpose \"of testing the credibility of the witness. Wigmore on Evidence (Third Edition), Vol. Ill, § 1006. Whether the' trial judge abused his discretion has no bearing upon the question of materiality. The defendant’s eighth request for charge which the court denied was: “The Government must establish the falsity of the statement alleged to have been made by the defendant under oath, by the testimony of two independent witnesses or one witness and corroborating circumstances. Unless that has been done, you must find defendant not guilty.” 7 Wigmore on Evidence, 3d Ed. §§ 2040-2043; State v. Storey, 1921, 148 Minn. 398, 182 N.W. 613, 15 A.L.R, 629; Marvel v. State, 1925, 33 Del. 110, 3 W.W.Harr. 110, 131 A. 317, 42 A.L.R. 1058; Goins v. United States, 4 Cir., 1938, 99 F.2d 147; United States v. Palese, 3 Cir., 1943, 133 F.2d 600, 602. United States v. Wood, 1840, 39 U.S. 430, 10 L.Ed. 527; United States v. Buckner, 2 Cir., 1941, 118 F.2d 468. Hammer v. United States, 1926, 271 U.S. 620, at pp. 626, 627, 46 S.Ct. 603, at page 604, 70 L.Ed. 1118, in which Justice Butler said: “The general rule-in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury. The application of that rule in federal and state courts is well nigh universal. The rule has long prevailed, and no enactment in derogation of it has come to our attention. The absence of such legislation indicates that it is sound and has been found satisfactory in practice.” For a comprehensive account of the origin and history of the Quantitative Rule in the Daw of Evidence see Wig-more on E'vidence" } ]

[ { "docid": "2016904", "title": "", "text": "new sentence must run concurrently with the undischarged term.” United States v. Austin, 239 F.3d 1, 5 (1st Cir.2001) (quoting U.S.S.G. § 5G1.3(b)). Further, the guidelines commentary advises a sentencing court imposing a concurrent sentence pursuant to section 5G1.3(b) to adjust the sentence for the instant offense by crediting any period of imprisonment already served for the underlying conduct “if the court determines that period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.” U.S.S.G. § 5G1.3 cmt. n.2. Section 5G1.3 was designed to prevent duplicative punishment by coordinating sentences, in certain circumstances, for related crimes. See Austin, 239 F.3d at 5. There are two problems with Ramirez’s reliance on section 5G1.3(b) and its commentary. First, the sentence involved here is a statutory mandatory minimum sentence, not a guidelines sentence, and so caselaw concerning the granting of credit for guidelines purposes does not necessarily govern. Except in limited circumstances, sentencing guidelines cannot be employed to impose a sentence below an applicable statutory mandatory minimum. Melendez v. United States, 518 U.S. 120, 126-27, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996). Some courts of appeal have nonetheless applied § 5G1.3 and Application Note 2 to eases involving statutory mandatory minimum sentences, crediting a defendant for time served in an undischarged, concurrent term of imprisonment, so long as the total of the time served and the reduced federal sentence equals or exceeds the statutory mandatory minimum period. See, e.g., United States v. Ross, 219 F.3d 592, 594-95 (7th Cir.2000); United States v. Drake, 49 F.3d 1438, 1440-41 (9th Cir.1995); United States v. Kiefer, 20 F.3d 874, 876-77 (8th Cir.1994). The theory is that the federal mandatory minimum statute does not specify any particular way in which that minimum term is to be achieved. This court has not ruled on the issue. And we need not reach it here, as Ramirez’s argument faces a different, and ultimately insurmountable, hurdle. Ramirez’s second problem is that even if an analogy to the guidelines were accepted, it would do Ramirez no good. The issue here involves the giving of credit when" } ]

[ { "docid": "13477395", "title": "", "text": "3558(a)(4). Thus, to implement section 924(e)(1) properly, sentencing courts must incorporate the Sentencing Guidelines into the ultimate sentence imposed. Without a doubt, “[s]ection 5G1.3 is part of that sentencing regime.” Kiefer, 20 F.3d at 876. In order to harmonize the statutory mandatory minimum with the remainder of the sentencing scheme, we construe 18 U.S.C. § 924(e)(1) to require the court to credit Drake with time served in state prison. To hold otherwise would “frustrate the concurrent sentencing principles mandated by other statutes.” Id. at 877. For this reason, we conclude that the district court indeed was required to’ reduce Drake’s mandatory minimum sentence for the time Drake served in Oregon prison. We thus vacate the sentence and remand for resentencing. VACATED and REMANDED. . Because Drake admitted that he possessed a handgun which was used in connection with an armed robbery, his federal sentence was increased by four levels pursuant to Guideline 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (Nov. 1993) (requiring a four level increase where a defendant used or possessed a firearm in connection with another felony offense). . Commentary to the Sentencing Guidelines is binding on the federal courts. See Stinson v. United States, - U.S. -,-, 113 S.Ct. 1913, 1917-18, 123 L.Ed.2d 598 (1993). . Application Note 2 presumes that time served for a state sentence is.to be credited toward a defendant’s federal sentence where the conduct underlying an undischarged state term of imprisonment has been fully taken into account in calculating the defendant's offense level. See U.S.S.G. § 5G1.3, comment, (n. 2) (Nov. 1993). . 18 U.S.C. § 3585(b) provides: A defendant shall be given credit toward the ' service of a term of imprisonment for. any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited, against another sentence. . In contrast, when Congress intended that the" }, { "docid": "23285545", "title": "", "text": "924(e) should be viewed as the sum of the sentence reflected on the federal district court’s order of judgment (which here said 188 months, but should have said the 154 months the judge intended he should actually serve) plus the 34 months he has already served for the “conduct taken into account in determining the guideline range.” The effect of § 924(e) is to require that the total of the time served plus the federal sentence cannot be less than 180 months (the mandatory 15-year period), but Ross’s total is 188 months, comfortably above that range. Two other circuits have come to the same conclusion on similar facts. See Drake, 49 F.3d at 1440-41; Kiefer, 20 F.3d at 876-77. As the Kiefer court pointed out, the language of § 924(e) stipulates that an armed career criminal like Ross “shall be ... imprisoned not less than fifteen years.” The statute does not specify any particular way in which that imprisonment should be achieved. The district courts are empowered under the Sentencing Guidelines to adjust the concurrent or consecutive nature of federal sentences so as to produce the correct total punishment. See U.S.S.G. §§ 5G1.2, 5G1.3. The Guidelines take the additional step in § 5G1.3 of specifying how undischarged terms of imprisonment should be taken into account to achieve the correct result. Application Note 2 goes further and specifies that the credit so given is not a departure from the guideline range; it is simply another way of achieving the required period of imprisonment. (A departure below the statutory mandatory minimum would be prohibited, unless the defendant qualified for safety valve treatment, 18 U.S.C. § 3553(f), or the government moved for a departure based on substantial assistance, 18 U.S.C. § 3553(e). See United States v. Smallwood, 188 F.3d 905, 916 (7th Cir.1999); United States v. Arrington, 73 F.3d 144, 147 (7th Cir.1996).) We conclude the computation of the total term of imprisonment for purposes of § 924(e) may, consistently with Application Note 2 to § 5G1.3, be accomplished by adding up the number of months the defendant has served on the related" }, { "docid": "22801687", "title": "", "text": "offense for which the undischarged term were imposed relate to the same crime, and requires that the new sentence run “concurrently to the undischarged term of imprisonment.” Although it is not obvious from the text of subsection (b) that “concurrently” refers to time already served on the preexisting sentence, Application Note 2 in the Commentary to § 5G1.3(b) provides that the defendant should be credited for that time. It states, “When a sentence is imposed pursuant to subsection (b), the court should adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense....” U.S.S.G. § 5G1.3 cmt. n. 2. Note 2, therefore, makes clear that “concurrently” in subsection (b) means fully or retroactively concurrently, not simply concurrently with the remainder of the defendant’s undischarged sentence. Because Ruggiano did not commit his racketeering offense while incarcerated, nor was it related to his state gambling offense, neither subsection (a) nor (b) of § 5G1.3 applies to his sentencing. Hence, as both parties agree, the “catch-all provision” of § 5G1.3 — subsection (c) — applies. See U.S.S.G. § 5G1.3 cmt. n. 3 (“In circumstances not covered under subsection (a) or (b), subsection (c) applies.”). As cited above, subsection (c) states that “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c). The BOP contends that neither this language, nor the language of the commentary to § 5G1.3 that expounds upon subsection (c) — namely, Application Notes 3 through 5 — permits a court to award credit for time served on an undischarged state sentence. The BOP submits that a prohibition on granting credit for time served on an unrelated sentence was effected by the 1995 amendments to the Guidelines, which altered the language of subsection (c) and its applicable commentary. Hence, the BOP asserts, our holding in Rios v. Wiley, 201 F.3d 257 (3d Cir.2000), which construed subsection (c) as permitting" }, { "docid": "3574656", "title": "", "text": "regarding its interplay with statutory mandatory minimum sentences, Kiefer urges us to conclude that § 924(e)(1) is satisfied if the total sentence imposed under § 5G1.3(b), including any credited time served in state prison, is equal to or greater than the mandatory fifteen-year minimum. The government- contends that the Guidelines expressly defer to statutorily mandated sentences, see § 5Gl.l(b), and therefore the district court correctly concluded it lacked authority under § 5G1.3 to sentence Kiefer to less than the fifteen years mandated by § 924(e)(1). A. At the outset we confront a jurisdictional issue. The government argues that this is a sentence credit question committed to the primary jurisdiction of the Bureau of Prisons under 18 U.S.C. § 3585(b) as construed in United States v. Wilson, — U.S. -, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Certainly, if this appeal is unsuccessful, Kiefer may eventually urge the Bureau of Prisons to grant him the additional sentence credit when he begins serving his federal sentence. But in this appeal Kiefer seeks to invoke a Guidelines provision to reduce his federal sentence. That is a question for the sentencing court, and we find nothing in Wilson suggesting that the Attorney General’s authority under § 3585(b) limits a sentencing court’s power to apply § 5G1.3 of the Guidelines. Therefore, we agree with the district court that it had jurisdiction to consider this §. 5G1.3 issue. B. Section 924(e)(1) provides that, if a person with three prior violent felony convictions violates § 922(g), “such person shall be ... imprisoned not less than fifteen years.” The issue here, as we see it, turns on the meaning of the word “imprisoned”: when the Guidelines mandate that state and federal sentences be served concurrently, is a defendant “imprisoned” for purposes of the mandatory minimum federal sentence during the time he serves on the concurrent state sentence prior to his federal conviction? A defendant who has spent time in “official detention” prior to the commencement of a § 924(e)(1) mandatory minimum sentence is eligible for the sentence credit afforded by 18 U.S.C. § 3585(b). Although we have found" }, { "docid": "19940152", "title": "", "text": "3584(a)); see United States v. Caldwell, 358 F.3d 138, 143 (1st Cir.2004). “Exercise of that authority, however, is predicated on the court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any applicable guidelines or policy statements issued by the Sentencing Commission.” U.S.S.G. § 5G1.3, cmt. background; see 18 U.S.C. § 3584(b); Caldwell, 358 F.3d at 143. Section 5G1.3 of the Guidelines addresses the “Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment.” U.S.S.G. § 5G1.3. Part (a) specifies when consecutive sentences are required; part (b) specifies when concurrent sentences are required; and part (c) covers “any other case” and gives the district court the discretion to impose sentence concurrently, partially concurrently or consecutively, “to achieve a reasonable punishment for the instant offense.” Id. § 5G1.3(a)-(e). Rogers argues on appeal, as he did before the district court, that his case is covered by § 5G1.3(b), which, in the 2003 version of the Guidelines, provided: If ... a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. “Thus, § 5G1.3(b) provides for an adjustment in sentence only where the undischarged sentence was (1) for a crime that constitutes relevant conduct for the instant offense and (2) was the basis for an increase in the offense level for the instant offense under Chapters Two or Three of the Guidelines.” See United States" }, { "docid": "13477389", "title": "", "text": "O’SCANNLAIN, Circuit Judge: We must reconcile an apparent conflict between a mandatory minimum sentence statute and the United States Sentencing Guidelines provisions for concurrent sentencing. I In a state proceeding, Anthony Drake was sentenced to sixty-six months in an Oregon prison for his participation in an armed robbery in which a .380 SPP semi-automatic handgun was used. Shortly after Drake began serving his state sentence, a federal grand jury indicted him on two counts of being a felon in possession of a firearm. Drake ultimately pled guilty to possession' of the handgun used in the Oregon robbery, in violation of 18 U.S.C. § 922(g). Because Drake had previously been convicted of three violent felonies, his plea of guilty to the section 922(g) offense rendered him subject to a mandatory minimum 180-month sentence under 18 U.S.C. § 924(e)(1). With this in mind, Drake and the government agreed that a sentence of 188 months would be appropriate. At sentencing, Drake argued that, in light of U.S.S.G. § 5G1.3(b), the federal sentence should be imposed to run concurrently to his state sentence. In relevant, part, section 5G1.3(b) provides that where a federal sentence is imposed on a defendant who is subject to an undischarged term of imprisonment, [i]f ... the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the' determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment. Reasoning that his armed robbery — the premise for his state sentence — had been fully considered in the determination of his federal sentence, Drake concluded that section 5G1.3(b) applied. Further, Drake contended that his federal sentence should.be adjusted to reflect the. time that he had served in state prison. In support of his argument, Drake cited Application Note 2 to section 5G1.3, which provides: When a sentence is imposed pursuant to subsection (b), the court should adjust for any term of imprisonment already served as a result of the conduct taken into account in determining the sentence for the" }, { "docid": "13477393", "title": "", "text": "— applying the relevant Sentencing Guidelines — before credit determinations shall be made by the Bureau of Prisons. Application of section 5G1.3(b) is a matter for the court, not the Bureau, to decide. III As to the merits, 18 U.S.C. § 924(e)(1) requires that a defendant with three prior violent felonies who violates section 922(g) be “imprisoned not less than fifteen years.” Yet if Drake’s interpretation is correct, the federal sentence imposed will fall below this mandatory minimum. We thus must determine whether Drake’s state sentence constitutes “imprisonment” for the purposes of 18 U.S.C. § 924(e)(1) such that the total sentence served will satisfy the mandatory minimum. The Eighth Circuit confronted precisely this issue in United States v. Kiefer, 20 F.3d 874 (8th Cir.1994), and its reasoning is persuasive. The Kiefer court began by recognizing that, in certain circumstances, time served prior to sentencing can reduce the ultimate sentence imposed under 18 U.S.C. § 924(e)(1). For example, a defendant who has spent time in “official detention” prior to the commencement of a section 924(e)(1) mandatory minimum sentence may obtain a sentence credit for time served, pursuant to 18 U.S.C. § 3585(b). This suggests that “in appropriate circumstances time served in custody prior to the commencement of the mandatory minimum sentence is time ‘imprisoned’ for purposes of §. 924(e)(1).” Id. at 876. But is time served in state prison on a separate,- albeit related, offense such an “appropriate” circumstance? An analysis of the relation between the concurrent sentencing statutes and the statutory mandatory minimums persuades us that it is. As the Kiefer court recognized, section 924(e)(1) was enacted after the Sentencing Reform Act, 18 U.S.C. § 3551 et seq. Under the terms of the Act, the district court must exercise its discretion to determine whether the sentence ultimately imposed should be concurrent or consecutive to an undischarged term of imprisonment. See 18 U.S.C. § 3584. In determining whether to impose a concurrent or consecutive term, 18 U.S.C. § 3584(b) directs the sentencing court to consider, among other factors, “the kinds of sentence ... set forth in the guidelines.” 18 U.S.C. §" }, { "docid": "13477390", "title": "", "text": "to his state sentence. In relevant, part, section 5G1.3(b) provides that where a federal sentence is imposed on a defendant who is subject to an undischarged term of imprisonment, [i]f ... the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the' determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment. Reasoning that his armed robbery — the premise for his state sentence — had been fully considered in the determination of his federal sentence, Drake concluded that section 5G1.3(b) applied. Further, Drake contended that his federal sentence should.be adjusted to reflect the. time that he had served in state prison. In support of his argument, Drake cited Application Note 2 to section 5G1.3, which provides: When a sentence is imposed pursuant to subsection (b), the court should adjust for any term of imprisonment already served as a result of the conduct taken into account in determining the sentence for the instant offense. U.S.S.G. § 5G1.3, comment, (n. 2) (Nov. 1993). As Drake had served 12 months of his state sentence at the time of the federal sentencing proceeding, such reduction would result in a federal sentence of 176 months— 188 months less 12 months. The district court agreed that the sentences should run concurrently. However, the court was troubled by the fact that to credit Drake’s state sentence against his federal one would reduce his federal sentence below the mandatory 180-month minimum required by 18 U.S.C. § 924(e)(1). Concerned that it lacked authority to depart below the mandatory minimum, the court concluded that “this is a matter for the Bu reau of Prisons. An, application can be made there ... because I do not feel I have the power to depart downward nor do I have the power to determine credit at this time.” The court then imposed a sentence of 188 months. Drake timely appealed. II We must first address whether the district court may properly refer the matter to the Bureau of Prisons" }, { "docid": "3482133", "title": "", "text": "(1) a hearing pursuant to United States v. Fatico, 458 F.Supp. 388 (E.D.N.Y.1978), aff'd, 603 F.2d 1053 (2d Cir.1979); (2) a downward departure based on family circumstances; and (3) appointment of new counsel. The district court then imposed a twenty-year sentence. Hutchinson now appeals his sentence. DISCUSSION On appeal, Hutchinson’s principal claim of error is that the district court failed to credit him for time served on his state conviction in contravention of section 5G1.3(b) of the United States Sentencing Guidelines. Section 5G1.3(b) states that if there is an undischarged term of imprisonment for an offense that has been “fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.” Application Note 2 to section 5G1.3 further states that, if a sentence is imposed concurrently under section 5G1.3(b), the district court “should adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense.” U.S.S.G. § 5G1.3 cmt. n. 2. We first hold that we have appellate jurisdiction over this appeal under 18 U.S.C. § 3742(a) and that Hutchinson has not waived his right to appeal the question presented. On the merits, we hold that the district court was required to apply section 5G1.3(b) to Hutchinson’s stipulated sentence, in light of the plea agreement’s failure to address the question. Because the basis of the district court’s refusal to impose a concurrent sentence was unclear, however, we proceed to consider whether Hutchinson would have benefitted from section 5G1.3(b) if the district court had applied it to the Rule 11(e)(1)(C) sentence bargain. We hold that it would have made no difference to his sentence and accordingly affirm the sentence imposed by the district court. I. Appellate Jurisdiction The government contends that we lack jurisdiction to review the district court’s failure to apply U.S.S.G. § 5G1.3(b). We disagree. Our jurisdiction to review sentences in criminal cases is governed by 18 U.S.C. § 3742. Section 3742(a)" }, { "docid": "3574653", "title": "", "text": "LOKEN, Circuit Judge. In this appeal, Ronald Joseph Kiefer argues that when the district court reduced his sentence under U.S.S.G. § 5G1.3(b) for time served in state prison, it erred by refusing to go below the applicable mandatory minimum. This issue requires us to reconcile a mandatory minimum statute, 18 U.S.C. § 924(e)(1), and the Guidelines provisions for concurrent sentencing. Concluding that the district court has more discretion under the Guidelines than it perceived, we rémand for resen-tencing. Kiefer was apprehended in February 1992 after robbing a St. Paul, Minnesota, restaurant using a firearm. In April, he was convicted in state court of robbery and assault and sentenced to 63 months in prison. While Kiefer was serving that state sentence, this federal indictment issued and he pleaded guilty to violating 18 U.S.C. § 922(g) by possessing a firearm during the robbery. Kiefer’s prior convictions include three violent felonies, making him an armed career criminal under the Guidelines and subject to a mandatory minimum fifteen-year sentence under § 924(e)(1). Kiefer’s Guidelines range sentence is 188 to 235 months in prison. His plea agreement — which the district court accepted— “capped” his sentence at 188 months, eight months more than the § 924(e)(1) mandatory minimum. At sentencing, Kiefer argued, and the district court agreed, (i) that his Minnesota sentence is an undischarged prison term for purposes of § 5G1.3; (ii) that his Minnesota offenses for robbing the St. Paul restaurant “have been fully taken into account in the determination of the offense level” for this § 922(g) conviction; and therefore (iii) that the state and federal ■ sentences should be concurrent under § 5G1.3(b). Kiefer further argued to thé district court that he is entitled to a sentence reduction for the' full 14{4 months he spent in state custody prior to his federal conviction under Application Note 2 to § 5G1.3, which provides in relevant part: When a sentence is imposed pursuant to subsection (b), the court should adjust for any term of imprisonment already served as a result of the conduct taken into account in determining the sentence for the instant" }, { "docid": "13477391", "title": "", "text": "instant offense. U.S.S.G. § 5G1.3, comment, (n. 2) (Nov. 1993). As Drake had served 12 months of his state sentence at the time of the federal sentencing proceeding, such reduction would result in a federal sentence of 176 months— 188 months less 12 months. The district court agreed that the sentences should run concurrently. However, the court was troubled by the fact that to credit Drake’s state sentence against his federal one would reduce his federal sentence below the mandatory 180-month minimum required by 18 U.S.C. § 924(e)(1). Concerned that it lacked authority to depart below the mandatory minimum, the court concluded that “this is a matter for the Bu reau of Prisons. An, application can be made there ... because I do not feel I have the power to depart downward nor do I have the power to determine credit at this time.” The court then imposed a sentence of 188 months. Drake timely appealed. II We must first address whether the district court may properly refer the matter to the Bureau of Prisons for resolution. Credit for time served is indeed á matter which generally falls within the province of the Bureau of Prisons under 18 U.S.C. § 3585(b). See United States v. Wilson, 503 . U.S. 329, 332-36, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992). Nevertheless, we see no reason why the principles underlying Wilson would apply to this case. Here, Drake seeks to invoke a Guidelines provision to reduce his federal sentence. The applicability of a Guidelines provision is a question for the sentencing court. See United States v. Kiefer, 20 F.3d 874, 876 (8th Cir.1994) (“[W]e find nothing in Wilson suggesting that the Attorney General’s authority under § 3585(b) limits a sentencing court’s power to apply § 5G1.3 of the Guidelines.”). Indeed, as the Court in Wilson explained, “[a]fter a District Court sentences a federal offender, the Attorney General, through the Bureau of Prisons, has the responsibility for administering the sentence.” Wilson, 503 U.S. at 335, 112 S.Ct. at 1355 (emphasis added). Such language presumes that the district court will first sentence the offender" }, { "docid": "23285544", "title": "", "text": "Under these circumstances, Application Note 2 to § 5G1.3 directs the sentencing court to credit the otherwise applicable guideline term of imprisonment. See Bell, 28 F.3d at 618-19; see also United States v. Dorsey, 166 F.3d 558, 563 (3d Cir.1999); United States v. Drake, 49 F.3d 1438, 1440 (9th Cir.1995); United States v. Kiefer, 20 F.3d 874, 875-76 (8th Cir.1994). Therefore, we agree with Ross that Application Note 2 to § 5G1.3 required the sentencing court to reduce by 34 his 188-month guideline sentence and impose a net sentence of 154 months. One further issue requires our attention. Ross, as an armed career criminal, was subject to a 15-year mandatory minimum sentence under 18 U.S.C. § 924(e)(1). On the surface of things, it would appear that the requirement of Application Note 2 to apply the 34-month credit to Ross’s sentence would have left his net sentence 26 months short of the statutorily required 15-year minimum term. In our view, however, such a conclusion would exalt form over substance. Ross’s total sentence for purposes of § 924(e) should be viewed as the sum of the sentence reflected on the federal district court’s order of judgment (which here said 188 months, but should have said the 154 months the judge intended he should actually serve) plus the 34 months he has already served for the “conduct taken into account in determining the guideline range.” The effect of § 924(e) is to require that the total of the time served plus the federal sentence cannot be less than 180 months (the mandatory 15-year period), but Ross’s total is 188 months, comfortably above that range. Two other circuits have come to the same conclusion on similar facts. See Drake, 49 F.3d at 1440-41; Kiefer, 20 F.3d at 876-77. As the Kiefer court pointed out, the language of § 924(e) stipulates that an armed career criminal like Ross “shall be ... imprisoned not less than fifteen years.” The statute does not specify any particular way in which that imprisonment should be achieved. The district courts are empowered under the Sentencing Guidelines to adjust the concurrent" }, { "docid": "20649722", "title": "", "text": "Accordingly, [i]f ... the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment. Id. § 5G1.3(b). This accounting occurs when a sentencing court “adjust[s the sentence] for any term of imprisonment already served as a result of the conduct taken into account in determining the sentence for the instant offense.” U.S.S.G. § 5G1.3 cmt. n.2. “For clarity, the court should note on the Judgment in a Criminal Case Order that the sentence imposed is not a departure from the guidelines because the defendant has been credited for guideline purposes under § 5G1.3(b) with [time] served.” Id. Thus, when the court pronounces sentence, that sentence is the “appropriate total punishment.” Id. If there were any doubt that this total sentence is not retroactive to the beginning of the first sentence, that doubt is eliminated by the example in the application notes. There, a prisoner had served six months in state court when he was prosecuted for a related crime in federal court. The federal court determined that a sentence of thirteen months was appropriate under the Guidelines and determined that § 5G1.3(b) applied. The prisoner was then sentenced to seven months, which sentence was to run concurrent to the remaining state sentence. See U.S.S.G. § 5G1.3 cmt. n.2. It is clear from the example that the prisoner owed seven more months starting from the date of the second sentencing. This reading of the guideline keeps it consistent with the statute, which says that service of the sentence commences when the defendant arrives in prison. See 18 U.S.C. § 3585. For these reasons, our pre-Guidelines observation in Flores remains the law: “[A] federal sentence cannot commence prior to the date it is pronounced.” 616 F.2d at 841. In this case, we presume that the district court properly applied the Guidelines, including § 5G1.3, when calculating Coloma’s sentence. That is, we conclude that, to the extent the district court" }, { "docid": "22364630", "title": "", "text": "§ 5G1.3. See Dorsey, 166 F.3d at 561-62; United States v. Holifield, 53 F.3d 11, 13 (3d Cir.1995); see also 28 U.S.C. § 994(a)(1)(D) (imposing statutory duty upon Sentencing Commission to include in guidelines “a determination whether multiple sentences to terms, of imprisonment should be ordered to run concurrently or consecutively”). The version of U.S.S.G. § 5G1.3 in effect at the time of Rios’s sentencing on January 31, 1994, contains three subsections. See U.S.S.G. § 5G1.3 (Nov.1993). Subsection (a) of the guideline describes circumstances in which imposition of a consecutive sentence is mandatory: If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment. U.S.S.G. § 5G1.3(a). Subsection (b) provides the circumstances in which a concurrent sentence is mandatory: If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment. U.S.S.G. § 5G1.3(b). For cases in which neither (a) nor (b) applies, the Sentencing Commission has issued section 5G1.3(c), which is a policy statement to guide the courts: (Policy Statement) In any other case, the sentence for the instant offense shall be imposed to run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense. See also United States v. Brannan, 74 F.3d 448, 454 n. 7 (3d Cir.1996). ■ The Act also addressed the related but distinct issue of the award of credit on a federal sentence for pre-sentence incarceration. Pursuant to the Act, Congress rewrote 18 U.S.C. § 3568 (“section 3568”), the prior statute governing the award of credit for pre-federal sentence incarceration, and recodified it as section 3585(b). Section 3585(b) (emphasis added) provides" }, { "docid": "2016903", "title": "", "text": "nothing about the waiver of appellate rights. The magistrate judge also advised Ramirez: “You have a right to appeal sentences that are high or low, you always have the right to appeal.” (emphasis added). The government then failed to offer a correction to the Magistrate Judge’s statement. Because of the problematic nature of these events, we turn to the merits. Credit for State Sentence The,district court’s interpretation of the guidelines as a matter of law is reviewed de novo. United States v. Caraballo, 200 F.3d 20, 24 (1st Cir.1999). Determinations of fact are reviewed for clear error. United States v. Santos Batista, 239 F.3d 16, 21 (1st Cir.2001). Ramirez argues, based on commentary to U.S.S.G. § 5G1.3(b), that the district court should have credited his six month sentence for the related offense toward the statutory mandatory minimum sentence. For sentencing guidelines cases, U.S.S.G. § 5G1.3(b) requires that when an undischarged term of imprisonment “‘resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense,’ the new sentence must run concurrently with the undischarged term.” United States v. Austin, 239 F.3d 1, 5 (1st Cir.2001) (quoting U.S.S.G. § 5G1.3(b)). Further, the guidelines commentary advises a sentencing court imposing a concurrent sentence pursuant to section 5G1.3(b) to adjust the sentence for the instant offense by crediting any period of imprisonment already served for the underlying conduct “if the court determines that period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.” U.S.S.G. § 5G1.3 cmt. n.2. Section 5G1.3 was designed to prevent duplicative punishment by coordinating sentences, in certain circumstances, for related crimes. See Austin, 239 F.3d at 5. There are two problems with Ramirez’s reliance on section 5G1.3(b) and its commentary. First, the sentence involved here is a statutory mandatory minimum sentence, not a guidelines sentence, and so caselaw concerning the granting of credit for guidelines purposes does not necessarily govern. Except in limited circumstances, sentencing guidelines cannot be employed to impose a sentence below an applicable statutory mandatory minimum. Melendez v. United States, 518" }, { "docid": "13477392", "title": "", "text": "for resolution. Credit for time served is indeed á matter which generally falls within the province of the Bureau of Prisons under 18 U.S.C. § 3585(b). See United States v. Wilson, 503 . U.S. 329, 332-36, 112 S.Ct. 1351, 1354-55, 117 L.Ed.2d 593 (1992). Nevertheless, we see no reason why the principles underlying Wilson would apply to this case. Here, Drake seeks to invoke a Guidelines provision to reduce his federal sentence. The applicability of a Guidelines provision is a question for the sentencing court. See United States v. Kiefer, 20 F.3d 874, 876 (8th Cir.1994) (“[W]e find nothing in Wilson suggesting that the Attorney General’s authority under § 3585(b) limits a sentencing court’s power to apply § 5G1.3 of the Guidelines.”). Indeed, as the Court in Wilson explained, “[a]fter a District Court sentences a federal offender, the Attorney General, through the Bureau of Prisons, has the responsibility for administering the sentence.” Wilson, 503 U.S. at 335, 112 S.Ct. at 1355 (emphasis added). Such language presumes that the district court will first sentence the offender — applying the relevant Sentencing Guidelines — before credit determinations shall be made by the Bureau of Prisons. Application of section 5G1.3(b) is a matter for the court, not the Bureau, to decide. III As to the merits, 18 U.S.C. § 924(e)(1) requires that a defendant with three prior violent felonies who violates section 922(g) be “imprisoned not less than fifteen years.” Yet if Drake’s interpretation is correct, the federal sentence imposed will fall below this mandatory minimum. We thus must determine whether Drake’s state sentence constitutes “imprisonment” for the purposes of 18 U.S.C. § 924(e)(1) such that the total sentence served will satisfy the mandatory minimum. The Eighth Circuit confronted precisely this issue in United States v. Kiefer, 20 F.3d 874 (8th Cir.1994), and its reasoning is persuasive. The Kiefer court began by recognizing that, in certain circumstances, time served prior to sentencing can reduce the ultimate sentence imposed under 18 U.S.C. § 924(e)(1). For example, a defendant who has spent time in “official detention” prior to the commencement of a section 924(e)(1) mandatory" }, { "docid": "3574654", "title": "", "text": "235 months in prison. His plea agreement — which the district court accepted— “capped” his sentence at 188 months, eight months more than the § 924(e)(1) mandatory minimum. At sentencing, Kiefer argued, and the district court agreed, (i) that his Minnesota sentence is an undischarged prison term for purposes of § 5G1.3; (ii) that his Minnesota offenses for robbing the St. Paul restaurant “have been fully taken into account in the determination of the offense level” for this § 922(g) conviction; and therefore (iii) that the state and federal ■ sentences should be concurrent under § 5G1.3(b). Kiefer further argued to thé district court that he is entitled to a sentence reduction for the' full 14{4 months he spent in state custody prior to his federal conviction under Application Note 2 to § 5G1.3, which provides in relevant part: When a sentence is imposed pursuant to subsection (b), the court should adjust for any term of imprisonment already served as a result of the conduct taken into account in determining the sentence for the instant offense.... For clarity, the court should note on the Judgment in a Criminal Case Order that the sentence imposed is not a departure from the guidelines because the defendant has been credited for guideline purposes under § 5G1.3(b) with [the time] served in state custody. That reduction would result in a federal sentence of 173/6 months, which appears to be six and one-half months less than the 180-month minimum mandated by § 924(e)(1). The district court applied Application Note 2 to the time Kiefer had served in state prison but concluded: “I am not authorized under [§ 5G1.3(b) ] to impose a sentence Of less than 180 months, the 15-year minimum.” Therefore, instead of reducing Kiefer’s sentence by the entire period he served in state prison, the court reduced it by eight months to the 180-month mandatory minimum. On appeal, Kiefer argues that § 6G1.3 required the district court to reduce his federal sentence for the entire 14]é months he served in state prison after the February 1992 armed robbery. Although § 5G1.3 is silent" }, { "docid": "9663072", "title": "", "text": "position that Mehta should not benefit from the credit as the basis for its denial. The Government, however, argues that the Sentencing Court’s actions did not amount to a § 3585(b) credit, but rather were merely akin to a sentencing adjustment under U.S.S.G. § 5G1.3(b). We consider that argument below. Section 5G1.3 concerns the imposition of a sentence when the defendant is subject to a previous, undischarged sentence. See U.S.S.G. § 5G1.3. Under subsection (b), when “a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction,” the sentence for the instant offense must be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. U.S.S.G. § 5G1.3(b). In applying this provision, a sentencing court first calculates the relevant Guidelines range for the instant offense. See U.S.S.G. § 5G1.3 cmt. n. 2D. The court then determines what total prison term would be appropriate. See id. Finally, the court subtracts from that term the amount of time that the defendant has already served on his other, undischarged term to arrive at the actual sentence for the instant offense. See id. That sentence is then run concurrent with the undischarged term. See id. The Government asserts that section 5G1.3(b)(1)’s language, which allows for an adjustment “if the court determines that such period of imprisonment will not be credited to the federal sentence by the [BOP],” supports the Sentencing Court’s actions because “[the court] adjusted Meh-ta’s sentence on the contempt conviction by taking into account the amount of time it believed that the [BOP] would not credit to his sentence.” (Appellee’s Br. 18.) Although this argument may have some appeal at first glance, it is not ultimately persuasive. First, the Government does not argue that section 5G1.3(b) itself" }, { "docid": "13477394", "title": "", "text": "minimum sentence may obtain a sentence credit for time served, pursuant to 18 U.S.C. § 3585(b). This suggests that “in appropriate circumstances time served in custody prior to the commencement of the mandatory minimum sentence is time ‘imprisoned’ for purposes of §. 924(e)(1).” Id. at 876. But is time served in state prison on a separate,- albeit related, offense such an “appropriate” circumstance? An analysis of the relation between the concurrent sentencing statutes and the statutory mandatory minimums persuades us that it is. As the Kiefer court recognized, section 924(e)(1) was enacted after the Sentencing Reform Act, 18 U.S.C. § 3551 et seq. Under the terms of the Act, the district court must exercise its discretion to determine whether the sentence ultimately imposed should be concurrent or consecutive to an undischarged term of imprisonment. See 18 U.S.C. § 3584. In determining whether to impose a concurrent or consecutive term, 18 U.S.C. § 3584(b) directs the sentencing court to consider, among other factors, “the kinds of sentence ... set forth in the guidelines.” 18 U.S.C. § 3558(a)(4). Thus, to implement section 924(e)(1) properly, sentencing courts must incorporate the Sentencing Guidelines into the ultimate sentence imposed. Without a doubt, “[s]ection 5G1.3 is part of that sentencing regime.” Kiefer, 20 F.3d at 876. In order to harmonize the statutory mandatory minimum with the remainder of the sentencing scheme, we construe 18 U.S.C. § 924(e)(1) to require the court to credit Drake with time served in state prison. To hold otherwise would “frustrate the concurrent sentencing principles mandated by other statutes.” Id. at 877. For this reason, we conclude that the district court indeed was required to’ reduce Drake’s mandatory minimum sentence for the time Drake served in Oregon prison. We thus vacate the sentence and remand for resentencing. VACATED and REMANDED. . Because Drake admitted that he possessed a handgun which was used in connection with an armed robbery, his federal sentence was increased by four levels pursuant to Guideline 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (Nov. 1993) (requiring a four level increase where a defendant used or possessed a firearm in connection with" }, { "docid": "22308122", "title": "", "text": "require concurrent sentences in situations where § 5G1.3(b)’s rationale would not fully apply. On the other hand, rejection of § 5G1.3(b) in such multiple-offenses situations would leave the court free fully to consider, under § 5G1.3(e), all of the potential permutations and complexities that can arise in a multiple-offenses context. For example, under § 5G1.3(e), courts may consider the degree to which each of the offenses underlying the undischarged prison term was taken into account, the relative lengths of the various undischarged sentences, and any other relevant factors which might impact on the fairness of the sentence. These factors can be considered by the court under § 5G1.3(e) in devising an appropriate sentence, be it consecutive, partially concurrent, or concurrent with or without credit for time served. U.S.S.G. § 5G1.3(c), p.s.; Witte, — U.S. at —, 115 S.Ct. at 2209 (even in absence of § 5G1.3, under Guidelines, courts “retain enough flexibility” to take into account dupli-cative consideration of the same criminal conduct). In this case, the district court properly exercised its discretion under § 5G1.3(e), and imposed a sentence which fairly reflected the extent to which (i) Kimble’s state offenses were taken into account and (ii) all his offenses were related to one another. The district court used § 5G1.3(c)’s flexibility to impose a concurrent sentence, but with no credit for time served. Kimble argues that United States v. Drake, 49 F.3d 1438 (9th Cir.1995), requires a different conclusion. Kimble’s argument has ho merit. Drake is of no help in this context; that case addressed the “apparent conflict between a mandatory minimum sentence statute and the ... Guidelines provisions for concurrent sentencing.” Id. at 1439. In that case, the district court had concluded that, although § 5G1.3(b) applied, the minimum sentence mandated by statute prevented it from imposing a concurrent sentence. We held that time served for a state offense can, under certain circumstances, count towards the minimum sentence set by statute; therefore, application of § 5G1.3(b) was not foreclosed in that ease by the statutory mandatory minimum sentence. Id. at 1440-41. Drake simply does not address any issues" } ]

[ { "docid": "4620939", "title": "", "text": "a single scheme to accomplish a discrete goal [publication of the Responsive Advertisement in lieu of Plaintiffs Advertisement] directed at only one individual [the plaintiff] with no potential to extend to other persons or entities. R., Vol. 3 Doc. 126 at 38 (brackets in original). We agree. The district court therefore properly dismissed the RICO claim on this basis. See Duran v. Carris, 238 F.3d 1268, 1271 (10th Cir.2001) (upholding dismissal when plaintiff failed to allege “the type of long-term criminal activity envisioned by Congress when it enacted RICO”). D. Amendment of Complaint Finally, we reject Mr. Hall’s contention that the district court abused its discretion in denying his request to amend the complaint. We have long held that such a request “must give adequate notice to the district court and to the opposing party of the basis of the proposed amendment.” Calderon v. Kan. Dep’t of Social & Rehab. Servs., 181 F.3d 1180, 1186-87 (10th Cir.1999). Without this information the district court is not required to recognize, let alone grant, a motion to amend. See id. at 1187. The district court generously considered Mr. Hall’s request in this case even though he had failed to submit a proposed amendment or a separate motion under Rule 15. Although Mr. Hall’s failure to attach a proposed amendment would not in itself have justified denying him leave to amend, he nowhere explained how a proposed amendment would cure the deficiencies identified by the district court. Because “we do not require district courts to engage in independent research or read the minds of litigants to determine if information justifying an amendment exists,” we conclude that the district court did not abuse its discretion in denying leave to amend in this case. Calderon, 181 F.3d at 1187 (brackets and internal quotation marks omitted). III. CONCLUSION The judgment of the district court is AFFIRMED. . Mr. Hall has filed two notices of appeal giving us jurisdiction. The first, in No. OS-3251, was premature, but our jurisdiction over that appeal ripened upon the district court’s October 1, 2008, order finally adjudicating all claims against all parties." } ]

[ { "docid": "22887388", "title": "", "text": "With this in mind, if Cliff wishes to represent debtors without regard to the timing of their hearing requests, he should seek leave to amend his class definition in this regard. D. Requests for Additional Discovery and an Evidentiary Hearing We find no abuse of discretion in the district court’s discovery rulings to date or in its failure to hold an evidentiary hearing. But our preemption ruling does suggest the need for additional discovery (as to the Florida Act claims). There may or may not be a need to conduct an evidentia-ry hearing at some later time. We leave these decisions to the judgment of the district court on remand. VI. CONCLUSION Based on the foregoing discussion, we find no error in the district court’s ruling that Cliffs Amended Complaint does not relate back to the original complaint. We also find no error in the court’s interpretation of “timely,” in its discovery rulings, or in its denial of Cliffs requests for an evi-dentiary hearing. However, we VACATE the district court’s February 6, 2002, order denying class certification because the court’s denial was premised on the erroneous conclusion that the Higher Education Act preempted Cliffs Florida Consumer Collection Practices Act claim, and we RE MAND this action for further proceedings consistent with this opinion. AFFIRMED IN PART; VACATED AND REMANDED IN PART. . Unless otherwise noted, the facts are drawn from the parties’ statements of undisputed material facts (filed in connection with OSI’s motion for partial summary judgment) and the district court's order. . OSI contends that Cliff did not return his hearing request by November 6, 1997, the last day in the 15-day period. Cliff counters that the pre-garnishment notice expressly stated that he would be entitled to a pre-garnishment hearing if his hearing request was received by November 11, and he claims that he sent the request via overnight delivery on November 8 to arrive November 9. OSI's records indicate that the request was not received until November 13. . Cliff also named Great Lakes and then-Secretary of the United States Department of Education Richard W. Riley, in his" }, { "docid": "17709052", "title": "", "text": "In fact, the only remedy for a violation of the Act is criminal, in the form of a “fine of not more than one hundred dollars, or by imprisonment in the county jail for not more than ninety days, or ... both.” Colo.Rev.Stat. § 24-72-206. Second, Martinelli 612 P.2d 1083, does not help Mr. McDonald. It involved an evidentiary privilege and a constitutional right to privacy in the context of discovery requests of documents in the personnel files of police officers. Id. at 173-77, 612 P.2d 1083. Mr. McDonald cites only the three-part balancing test applied by the court to determine when\" a constitutional right to privacy prevents disclosure of information during the discovery process. Id. at 173-74, 612 P.2d 1083; see Aplt. Br. at 41-42. But he cites no constitutional case law and provides no analysis in an effort to bring himself within the parameters of the Fourteenth Amendment’s right to privacy, and we decline to do it for him. Mr. McDonald also suggests we should reverse the district court’s denial of his request to amend his complaint to bring a privacy claim. Plaintiffs have a right to amend their complaint once as a matter of course pursuant to Federal Rule of Civil Procedure 15(a) and to make further amendments with leave of court or the opposing party’s written consent. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.2006). Although courts “should freely give leave when justice so requires,” Fed.R.Civ.P. 15(a)(2), this is a matter of discretion and “we will not reverse the court’s decision absent an abuse of discretion.” Minter, 451 F.3d at 1204 (internal quotation marks and citation omitted). The district court denied the motion to amend because it concluded the amendment would be futile. Because Mr. McDonald provides no analysis for why an amendment would not be futile, the district court did not abuse its discretion in denying his request to further amend the complaint. VI DEFAMATION CLAIM AGAINST OFFICER WISE The district court dismissed Mr. McDonald’s defamation claim against Ms. Wise for two reasons, holding that Ms. Wise was immune from liability under" }, { "docid": "14700282", "title": "", "text": "the magistrate judge’s recommendation that leave to file the amended complaint under Federal Rule of Civil Procedure 15 be denied. The magistrate judge reasoned that leave would be futile because the Bivens claims were time-barred. The plaintiffs appeal both the dismissal of their FTCA claims and the denial of leave to amend. II. STANDARD OF REVIEW We review de novo the district court’s order granting the Government’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir.2009). “In our de novo review ..., we apply the same standard as does the district court.” Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 663 (5th Cir.2007) (internal quotation marks omitted). In applying Rule 12(b)(1), the district court “has the power to dismiss for lack of subject matter juris diction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” St. Tammany Parish, 556 F.3d at 315 (internal quotation marks omitted). “Here, the district court did not resolve any disputed facts,[ ] so we, as did the district court, consider the allegations in the plaintiffs complaint as true.” Id. (internal quotation marks omitted). “[0]ur review is limited to determining whether the district court’s application of the law is correct and, to the extent its decision [was] based on undisputed facts, whether those facts are indeed undisputed.” Id. (internal quotation marks omitted). We then ask if dismissal was appropriate. Id. Although we generally review a district court’s denial of leave to amend for abuse of discretion, where, as here, the district court’s sole reason for denying such an amendment is futility, “we must scrutinize that decision somewhat more closely, applying a de novo standard of review similar to that under which we review a dismissal under Rule 12(b)(6).” Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir.2010); see also Stripling v. Jordan" }, { "docid": "5862809", "title": "", "text": "not required to hold an evidentiary hearing on the defendant’s motion to suppress where the defendant failed to dispute any material fact in the government’s proffer). We review the district court’s denial of an evidentiary hearing for abuse of discretion. See United States v. Hoang, 486 F.3d 1156, 1163 (9th Cir .2007). Cook’s first motion to suppress failed to raise a material factual dispute. The district court nevertheless invited Cook to clarify by directing him to confirm that “the motion can be resolved without an evidentiary hearing” and to identify facts that Cook “contend[s] are in dispute.” In response, Cook neither asked for an evi-dentiary hearing nor identified a single disputed fact. He instead focused on a new legal argument that his arrest was not supported by probable cause. In short, because Cook failed to “allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist,” the court did not abuse its discretion in failing to hold an evidentiary hearing. Howell, 231 F.3d at 620. Cook now contends that he in fact identified a factual dispute by arguing below that Officer Knight’s first search was “manufactured for the purpose of legitimatizing an otherwise unlawful search.” What Cook fails to acknowledge, however, is that he raised this claim only after his first trial. By that point, the district court had already heard trial testimony from the law enforcement witnesses — Officer Knight and Special Agent Dial — who Cook would have called in support of his motion. Because Cook had already cross-examined these witnesses’ accounts of the first search, the district court could use “[t]estimony at trial ... to sustain the denial of a motion to suppress evidence.” United States v. Sanford, 673 F.2d 1070, 1072 (9th Cir.1982). This is especially true where, as here, Cook never proffered in his renewed motions that, at an evidentiary hearing, he would testify to an alternate version of the moments after his arrest. United States v. Hernandez-Acuna, 498 F.3d 942, 945 (9th Cir.2007) (holding that even though “trials serve a different function from evidentiary" }, { "docid": "716958", "title": "", "text": "Gallegos’s allegations. The case law in this area, as we discuss below, is obscure and apparently not well understood. The district court’s course of action&emdash;and defense counsel’s failure to point out the correct course more precisely&emdash;is therefore understandable. Nevertheless, we conclude that the court erred by failing to grant leave to conduct discovery. This case arises at the intersection of evidentiary hearings and fact discovery in the Rule 33 context. Our precedent speaks more frequently to the former and makes clear that a district court is “not required to hold” an evidentiary hearing before resolving a motion for a new trial, United States v. Sutton, 767 F.2d 726, 729 (10th Cir.1985), particularly “when the record is complete or the petitioner raised only legal claims that can be resolved without the taking of additional evidence,” Lawrence v. Lensing, 42 F.3d 255, 259 (5th Cir.1994) (internal quotation marks omitted), cited in Pearl, 324 F.3d at 1215. This is because “[t]he purpose of an evi-dentiary hearing is to resolve conflicting evidence.” Anderson v. Attorney Gen., 425 F.3d 853, 860 (10th Cir.2005). As we stated in Anderson, “ ‘[wjhether the record raises a genuine factual issue [requiring an evi-dentiary hearing in a § 2254 proceeding] is decided by the same standards used to decide a Rule 56 motion for summary judgment.’ ” Id. (quoting East v. Scott, 55 F.3d 996, 1002 (5th Cir.1995)) (brackets in original); see Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Thus, the court is required to conduct the evidentiary hearing only if the admissible evidence presented by petitioner, if accepted as true, would warrant relief as a matter of law. Mr. Velarde does not satisfy that standard here because, by his own admission, he was unable to procure the necessary evidence from the school officials without judicial compulsion. In limited circumstances, however, a defendant who is unable to submit evidence to the court sufficient to warrant an evi-dentiary hearing, is able to make a showing that further investigation under the court’s subpoena power very likely would lead to the discovery of such evidence." }, { "docid": "4258089", "title": "", "text": "previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine %vhether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require. Rule 8(a) (emphasis added). The amendment to Rule 8(a), effective 1 December 2004, makes no substantive change. The amended Rule provides: If the petition is not dismissed, the judge must review the answer, any transcripts and records of state-court proceedings, and any materials submitted under Rule 7 [allowing district judge to “direct the parties to expand the record by submitting materials relating to the petition”] to determine whether an evi-dentiary hearing is warranted. Posb-AEDPA, Rule 8(a) has been interpreted to vest district courts with discretion to conduct an evidentiary hearing if not barred by subpart(e)(2). See Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir.), cert. denied 531 U.S. 957, 121 S.Ct. 380, 148 L.Ed.2d 293 (2000); Clark v. Johnson, 202 F.3d 760, 765 (5th Cir.), cert. denied, 531 U.S. 831, 121 S.Ct. 84, 148 L.Ed.2d 46 (2000). Our court has remanded to district court, with instructions to conduct an evi-dentiary hearing, despite the state court’s having held one. See Barrientes, 221 F.3d at 770 (agreeing with State that district court abused its discretion by granting habeas relief without conducting evidentia- ry hearing where it “lacked sufficient undisputed facts to make an informed decision” (emphasis added)). And, in at least one instance, the State has not challenged the federal habeas court’s discretion to conduct an evidentiary hearing, despite the state habeas court’s having held a hearing involving the same issue and nearly identical evidence. See Valdez, 274 F.3d at 948, n. 13 (in the light of Michael Williams, State abandoned its initial contention that the district court abused its discretion in conducting evidentiary hearing: “The Director asserts that ... the district court had the discretion to hold an evidentiary hearing....”). The restriction imposed by subpart" }, { "docid": "5252760", "title": "", "text": "never required to be anything more than an outsider with respect to the Islamic Society. 4. Equal Protection Fields asserts an equal-protection claim premised on the violation of his fundamental right to the free exercise of religion. In the district court and on appeal, however, he has not distinguished this claim from his free-exercise claim, never devoting more than a page to the claim in any pleading. Because we hold that TPD did not violate Fields’s free-exercise rights and his equal-protection claim is nothing more than a “rephrasing” of his free-exercise claim, “[i]t falls with [his argument] based on denial of religious freedom.” Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 88 L.Ed. 645 (1944). B. Denial of Leave to Amend We review a district court’s denial of leave to amend for abuse of discretion. See Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir.2010). But if the district court denied leave to amend because it determined that amendment would be futile, “our review for abuse of discretion includes de novo review of the legal basis for the finding of futility.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir.2013) (internal quotation marks omitted). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Id. (internal quotation marks omitted). A complaint is subject to dismissal under Fed.R.Civ.P. 12(b)(6) if the plaintiff fails to allege facts that would “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). 1. Oklahoma Religious Freedom Act Fields contends that the district court should have allowed him to amend his complaint to include a claim under the Oklahoma Religious Freedom Act (ORFA), Oída. Stat. tit. 51, §§ 251-258 (2000). His argument on this point in his opening brief on appeal concludes by saying, “[F]or the reasons that Defendants violated Plaintiffs free exercise rights under the First Amendment, see infra, Defendants similarly violated Plaintiffs rights protected by ORFA.” Aplt. Br. at 58. He does" }, { "docid": "7797390", "title": "", "text": "of correctness is rebuttable only “by clear and convincing evidence.” Id. Boyd v. Ward, 179 F.3d 904, 911-12 (10th Cir.1999). “If, however, a state court did not decide a claim on its merits and instead the federal district court decided the claim in the first instance, this court reviews the district court’s conclusions of law de novo and factual findings, if any, for clear error.” Wallace v. Ward, 191 F.3d 1235, 1241 (10th Cir.1999). III. Denial of evidentiary hearing Trice contends the district court erred by not conducting an evidentiary hearing on his ineffective assistance of counsel claims. In Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998), we held that the AEDPA’s restrictions on evi-dentiary hearings do not apply where a habeas petitioner has “diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so.” Although Trice falls within this exception because he sought and was denied an evidentiary hearing in connection with his application for post-conviction relief, we conclude he is not entitled to an evidentiary hearing under pre-AEDPA standards because we can fully resolve his ineffective assistance of counsel claims on the record before us. See Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir.1999). Ineffective assistance of trial counsel Trice contends his trial counsel was ineffective in several respects, all of which were allegedly prejudicial to him. To prevail on his claims of ineffective assistance, Trice must satisfy two requirements. First, he must demonstrate that his counsel’s performance was constitutionally deficient, i.e., that it fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To make this showing, Trice must overcome a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance [that] ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Second, Trice must demonstrate there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would" }, { "docid": "14502094", "title": "", "text": "the issues can be resolved on the basis of the record and the law, no evidentiary hearing is required.” Scrivner v. Tansy, 68 F.3d 1234, 1242 (10th Cir.1996). Our independent review shows that the record was sufficient to resolve all issues raised by Johnson. Despite petitioner’s attempts to characterize his request for an evidentiary hearing as stemming from an ineffective assistance claim, the alleged instances of deficient performance on which petitioner seeks an evidentiary hearing all pertain to the denial of funds for psychiatric expert assistance and travel. The issue of whether Johnson had a constitutional right to funds for expert assistance is a legal one, see Castro, 71 F.3d at 1510, as is the question of whether erroneous denial of such assistance was constitutionally harmless, see id. at 1516-16. Therefore, in the absence of disputed material facts, Johnson did not have a right to an evidentiary hearing, and the district court did not abuse its discretion in denying him one. See Lasiter, 89 F.3d at 703; Scrivner, 68 F.3d at 1242; cf. Siripongs v. Calderon, 35 F.3d 1308, 1314 (9th Cir.1994). XIII In a July 5,1996, motion, petitioner sought to dismiss his appointed lead counsel in the federal habeas action, Thomas M. Lahiff, and substitute LahifPs co-counsel, Vicki Werneke of the Office of the Federal Public Defender, as lead counsel. We consider the argument that the district court’s denial of petitioner’s pro se motion to dismiss appointed counsel and appoint substitute counsel constitutes grounds for remand to the district court. The district court denied the motion on the grounds “[p]etitioner fails to indicate service of the motion on current counsel and the motion was filed by petitioner long after the briefing was completed on his petition for habeas relief.” Mem. Op. at 73. Shortly thereafter, on August 27, 1996, the district court granted Lahiffs motion to withdraw, stating that “[t]he Office of the Federal Public Defender will continue to represent Mr. Johnson.” R., Doc. 39, at 1. Although habeas petitioners have no independent Sixth Amendment right to counsel, see Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990," }, { "docid": "16132107", "title": "", "text": "must affirm the district court’s dismissal of the action. We turn, therefore, to the other objections raised by Mr. Shrader on this appeal. III. REMAINING ISSUES ON APPEAL A. Denial of Amendment The district court cited two reasons for denying Mr. Shrader leave to amend his complaint a second time following the submission of defendants’ motions to dismiss: (1) Mr. Shrader had failed to comply with a local rule requiring counsel to confer and attempt to resolve any differences with respect to non-dispositive motions before filing them with the court; and (2) formal amendment of the complaint to respond to the pending motions was unnecessary in that “[Mr. Shrader’s] responses to the motions to dismiss (as well as Defendants’ replies) w[ould] adequately inform the court of the jurisdictional posture of the case.” R. vol. 1 at 275. We review this matter for an abuse of discretion, Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir.2007), and, finding none, affirm the district court’s ruling. Noncompliance with procedures required by local rule is a proper basis for denial of a motion to amend. See, e.g., Barrett v. Orman, 373 Fed.Appx. 823, 826 (10th Cir.2010) (following Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1029-30 (10th Cir.1996) (upholding denial of motion to amend based in part on failure to comply with local rules)). The operative local rule here provides in pertinent part: [T]his Court shall refuse to hear any [non-dispositive] motion or objection unless counsel for movant first advises the Court in writing that counsel personally have met and conferred in good faith and, after a sincere attempt to resolve differences, have been unable to reach an accord. No personal conference shall be required, however, where the movant’s counsel represents to the Court in writing that movant’s counsel has conferred with opposing counsel by telephone and ... the distance between counsel’s offices renders a personal conference infeasible. E.D. Okla. LCvR 7.1. The district court noted that all Mr. Shrader had done was send an email to opposing counsel and then file his motion when a prompt reply was not forthcoming." }, { "docid": "23388153", "title": "", "text": "for Leave to Amend We review for abuse of discretion the district court’s denial of Mr. Fields’s motions to amend his complaint. See Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir.1997). We discern no error by the court. The court characterized the proposed pleading as not really an amended complaint but an effort to show exhaustion. Mr. Fields does not dispute this characterization. Because Mr. Fields was given an additional opportunity to file such support, he suffered no prejudice. Of course, we could also reject the appeal of this ruling on the ground that Mr. Fields has not provided an adequate record on appeal. See Taylor v. Phelan, 9 F.3d 882, 884 n. 4 (10th Cir.1993) (declining to address an issue when evidentiary materials necessary for proper consideration of the issue are not included in the record on appeal). D. State-Law Claims Because we affirm the dismissal of all Mr. Fields’s federal-law claims, dismissal of his state-law claims under 28 U.S.C. § 1367(c)(3) was proper. The judgments of the district court are AFFIRMED. We DENY Mr. Fields’s Motion for Reconsideration filed in this court on December 26, 2006; to the extent that it seeks relief on appeal, Mr. Fields had the opportunity to address the issues in his later briefs to this court. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Section 1997e(a) states: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal Law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." }, { "docid": "4258088", "title": "", "text": "to do so), subpart (e)(2) does not bar an evidentiary hearing in district court. Guidry requested, and received, an evi-dentiary hearing in state court and provided ample evidence, to say the least, for the factual basis for his Fifth Amendment claim. Testimony at the pre-trial hearings — Guidry’s and that of four lawyers— more than adequately developed that factual basis. Therefore, subpart (e)(2) did not bar the evidentiary hearing in district court. The State conceded this at oral argument here. As noted, the dissent maintains the district court abused its discretion in holding an evidentiary hearing because it did not intend to hear “new evidence”, Dissent at 333, so there was “no justification” for its holding a new hearing, id. at 334. Where subpart (e)(2)’s bar does not apply, Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts grants district courts the very discretion the dissent would proscribe. The version of Rule 8 in effect when the hearing was granted provided: If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine %vhether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require. Rule 8(a) (emphasis added). The amendment to Rule 8(a), effective 1 December 2004, makes no substantive change. The amended Rule provides: If the petition is not dismissed, the judge must review the answer, any transcripts and records of state-court proceedings, and any materials submitted under Rule 7 [allowing district judge to “direct the parties to expand the record by submitting materials relating to the petition”] to determine whether an evi-dentiary hearing is warranted. Posb-AEDPA, Rule 8(a) has been interpreted to vest district courts with discretion to conduct an evidentiary hearing if not barred by subpart(e)(2). See Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir.), cert. denied 531 U.S. 957," }, { "docid": "22301266", "title": "", "text": "vicariously assert their rights. We therefore hold that Mr. Scott does not have standing to challenge the disqualification of the attorneys on grounds that the disqualification deprived his co-defendants of their right to counsel of choice. Mr. Scott also contends that his personal Sixth Amendment rights were implicated because the disqualification denied him the ability to plan and pursue a joint defense. While Mr. Scott has standing to bring this claim, we nonetheless conclude the claim is meritless. It is undisputed that during the ten-day disqualification period, Mr. Scott’s attorneys were free to communicate with Ms. Jones’ and Ms. Johnson’s appointed interim attorneys, thereby affording Mr. Scott the uninterrupted opportunity for a joint defense. Although the disqualified attorneys were prohibited from communicating with Ms. Jones and Ms. Johnson, they could communicate with their former clients’ appointed attorneys “to advise them of the defenses,” rec., vol. V, at 258, further assuring the continuity of any joint defense strategy. Moreover, Mr. Scott’s argument that he was deprived of a joint defense appears rather vacuous considering that he denied knowing either co-defendant. See rec., vol. IX, at 242-43. We hold that Mr. Scott was not denied effective assistance of counsel. V. EVIDENTIARY ISSUES 1. Hearsay Evidentiary rulings are committed to the discretion of the trial court and are reviewed only for abuse of discretion. United States v. Zimmerman, 943 F.2d 1204, 1211 (10th Cir.1991). While we review evi-dentiary rulings by considering the record as a whole, Boren v. Sable, 887 F.2d 1032, 1034 (10th Cir.1989), deference to the trial judge is heightened when reviewing rulings on hearsay questions, id. at 1033. This court applies a harmless error standard when reviewing trial courts’ rulings on hearsay objections resting solely on the Federal Rules of Evidence. United States v. Jefferson, 925 F.2d 1242, 1253-55 (10th Cir.), cert. denied, 502 U.S. 884, 112 S.Ct. 238, 116 L.Ed.2d 194 (1991). A harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect. Id. at 1255. Mr." }, { "docid": "15083498", "title": "", "text": "a few blocks between the place Mr. Vigil said he was at and the location of the crime.”). Under these circumstances, we cannot conclude that the Gonzales affidavit establishes the requisite prejudice for a new trial. III. Evidentiary Hearing Vigil obliquely argues that, if we conclude that the Gonzales affidavit does not, in and of itself, establish prejudice, we should then compel the district court to hold an evidentiary hearing to resolve any lingering factual questions in this case. Again, we disagree. Generally, the decision to hold an evidentiary hearing “is vested in the broad discretion of the district courts, and [is] ... reviewed] ... only for an abuse of discretion.” Davis, 60 F.3d at 1483. See United States v. Humphrey, 208 F.3d 1190, 1198 (10th Cir.2000) (“How and whether to have a hearing on a claim that jurors were improperly exposed to extraneous information is within the trial court’s sound discretion.”); Johnson v. Gibson, 169 F.3d 1239, 1253 (10th Cir.1999) (finding district court did not abuse its discretion in refusing to hold an evidentiary hearing in a habeas case); Lasiter v. Thomas, 89 F.3d 699, 702 (10th Cir.1996) (reviewing for abuse of discretion in habe-as case). We have explained that under pre-AED-PA habeas standards, a habeas petitioner must satisfy two criteria in order to obtain a federal evidentiary hearing. First, the habeas petitioner must “make allegations which, if proved, would entitle him to relief.” Medina v. Barnes, 71 F.3d 363, 366 (10th Cir.1995) (citing Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)). Second, the “petitioner is entitled to a hearing in federal court only if he did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding which resulted in reliable findings.” Scrivner, 68 F.3d at 1242 (internal quotation marks omitted); see Miller v. Champion, 161 F.3d 1249, 1252 (10th Cir.1998); Medina, 71 F.3d at 369-70; Dever v. Kan. State Penitentiary," }, { "docid": "23575325", "title": "", "text": "in conjunction with the final decision. See, e.g., Copier v. Smith & Wesson Corp., 138 F.3d 833, 834 (10th Cir.1998) (“Appellant ... appeals from the district court’s final order denying her motion to amend and confirming dismissal of her complaint.”) (note omitted). Thus, if Mr. Combs had presented his motion to amend argument in the same appeal as his summary judgment argument, we would undoubtedly have jurisdiction. That is not exactly the case at hand. Mr. Combs filed his summary judgment appeal first; he then separately appealed the denial of his motion to amend. Although filing two separate appeals may affect our jurisdiction in a different case; we do not find on the facts before us that Mr. Combs’ filing of two separate appeals differs meaningfully from a single appeal of a final decision that includes a review of a motion to amend as an additional issue. Therefore, we hold that we have jurisdiction to hear Mr. Combs’ motion to amend appeal. B. Denial of Leave to Amend After entering final judgment against Mr. Combs, the District Court dismissed Mr. Combs’ motion for leave to amend his complaint as moot. Mr. Combs contends this amounts to reversible error. We disagree. 1. Standard of Review The parties contest the applicable standard of review. In his opening brief, Mr. Combs pushes for de novo review by-citing Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1192 (10th Cir.2002) and Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir.2000). Foster and Cooperman, however, hold that the de novo standard applies to our review of summary judgment orders, not denials of motions to amend. Ms. Bennett argues for abuse of discretion review, citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (“It is settled that the grant of leave to amend the pleadings pursuant to Rule 15(a) is within the discretion of the trial court”) and Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.1994) (same). In reply, Mr. Combs reasserts that we apply de novo review, this time relying upon Watson ex." }, { "docid": "23575327", "title": "", "text": "rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir.2001) (“This court reviews de novo a district court’s refusal to grant leave to amend a complaint based on the court’s conclusion that the amendment would be futile.”). Although Mr. Combs relies exclusively on Watson in his renewed standard of review argument, he fails to argue that the District Court based its decision to deny leave to amend on futility. Therefore, we review for abuse of discretion. Pallottino, 31 F.3d at 1027. 2. Merits The District Court denied Mr. Combs’ motion to grant leave to amend, stating only that it was moot. Mr. Combs contends that the District Court abused its discretion by failing to offer reasons for its denial because the rationale for the denial is not apparent from the record. See id. He misapplies this rule. After a district court enters a final judgment, as occurred here, it may not entertain motions for leave to amend unless the court first sets aside or vacates the judgment pursuant to Fed.R.Civ.P. 59(e) or 60(b). Seymour v. Thornton, 79 F.3d 980, 987 (10th Cir.1996). Mr. Combs filed neither a Rule 59(e) nor a Rule 60(b) motion. This failure to file the necessary prerequisite motion mooted his motion to amend. As such, the District Court provided all the explanation necessary to justify its ruling. Although he did not style his Rule 15(a) motion to amend as a motion to set aside or vacate, Mr. Combs counters that the District Court had “the discretionary power to treat [his] Rule 15(a) motion seeking to amend a complaint as including a Rule 59(e) motion to amend judgment or a Rule 60(b) motion for relief from judgment.” 3 Moore’s Federal Practice § 15.12[2] & n. 19 (3d ed.2004) (listing cases). Mr. Combs, however, offers no reason for us to conclude that the District Court abused its discretion by failing to morph his Rule 15(a) motion into a Rule 59(e) or 60(b). Indeed, our review of relevant case law and the record assures us that the District Court made the proper ruling. In Pallottino, we explained that granting" }, { "docid": "14502093", "title": "", "text": "argues that the district court erred in denying his request for an evidentia-ry hearing on the issues raised by the denial of funds for expert assistance. In support, Johnson states he was prevented from developing and presenting evidence in support of claims regarding denial of funds for a forensic expert, denial of funds for a psychiatrist, denial of funds to investigate mitigating evidence, ineffective assistance of appellate counsel, and ineffective assistance of trial counsel. More specifically, Johnson alleges that he was denied the opportunity to present evidence demonstrating ineffective assistance of trial counsel arising out of the denial of funds for expert assistance and travel to gather mitigation evidence. We review the district court’s denial of an evidentiary hearing for abuse of discretion. See Lasiter v. Thomas, 89 F.3d 699, 702 (10th Cir.1996). The district court found that no issues of fact were disputed, and thus the habeas petition could be resolved “on the basis of the record and the law,” requiring no evidentiary hearing. Mem. Op. at 2. “If no facts are disputed and the issues can be resolved on the basis of the record and the law, no evidentiary hearing is required.” Scrivner v. Tansy, 68 F.3d 1234, 1242 (10th Cir.1996). Our independent review shows that the record was sufficient to resolve all issues raised by Johnson. Despite petitioner’s attempts to characterize his request for an evidentiary hearing as stemming from an ineffective assistance claim, the alleged instances of deficient performance on which petitioner seeks an evidentiary hearing all pertain to the denial of funds for psychiatric expert assistance and travel. The issue of whether Johnson had a constitutional right to funds for expert assistance is a legal one, see Castro, 71 F.3d at 1510, as is the question of whether erroneous denial of such assistance was constitutionally harmless, see id. at 1516-16. Therefore, in the absence of disputed material facts, Johnson did not have a right to an evidentiary hearing, and the district court did not abuse its discretion in denying him one. See Lasiter, 89 F.3d at 703; Scrivner, 68 F.3d at 1242; cf. Siripongs v." }, { "docid": "14776915", "title": "", "text": "(2016) (alterations in original) (quotation marks omitted). There’s no binding appellate case to support Mr. Willner’s argument, and we won’t make Virginia law by stretching the definition of “recoupment” to create a new duty in tort. We also reject Mr. Willner’s attempt to hold Chase CEO James Dimon liable for negligence. Mr. Willner makes two allegations against him: (1) Dimon signed a Consent Order with the Office of- the Comptroller of the Currency, in which Chase agreed to correct problems with its servicing and foreclosure practices, and (2) Mrs. Willner tried to reach Dimon to discuss the foreclosure process but was only able to speak with one of his assistants. Mr. Will-ner’s allegations do not support liability for Dimon under any theory. Finally, we turn to whether the district court erred by not addressing the Will-ners’ requests to amend their complaint. C. The Willners argue that the district court abused its discretion by not providing a reason for denying their requests to amend. We review a district court’s denial of leave to amend a complaint for abuse of discretion. Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 630 (4th Cir. 2008). We find no such abuse on this record. The Willners never filed a formal motion to amend, but rather requested leave to amend in the conclusions of three oppositions to motions to dismiss and one surreply. Equally important, they’ve not shown, even on appeal, how amendment would cure the deficiencies in their complaint. “[W]here, as here, the plaintiff fails to formally move to amend and fails to provide the district court with any proposed amended complaint or other indication of the amendments he wishes to make, the district court [does] not abuse its discretion” in denying leave to amend. Estrella v. Wells Fargo Bank, N.A., 497 Fed.Appx. 361, 362 (4th Cir. 2012) (per curiam) (second alteration in original) (quotation marks omitted); accord Cozzarelli, 549 F.3d at 630-31 (finding no abuse of discretion in “declining to grant a motion [to amend] that was never properly made” but raised only in opposition to a motion to dismiss and in objections to" }, { "docid": "9622925", "title": "", "text": "that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). In addition, we presume the factual findings of the state court are correct unless petitioner can rebut this presumption by clear and convincing evidence. See id. § 2254(e)(1). Id. at 1264-65. The level of deference owed the OCCA in this case is somewhat complicated. As to factual findings underlying claims which the OCCA decided on the merits and for which the federal district court refused to grant an evidentiary hearing, the dictates of 28 U.S.C. § 2254(e)(1) apply and we must presume them true unless rebutted by Mr. Smith by clear and convincing evidence. As to factual findings underlying claims for which the federal district court properly granted an evi-dentiary hearing and for which the OCCA made no factual findings, we review the district’s court findings for clear error. See Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998); see also Romano v. Gibson, 278 F.3d 1145, 1150 (10th Cir.2002). [W]here ... a habeas petitioner has diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so, ... [he] is entitled to receive an evidentiary hearing so long as his allegations, if true and not contravened by the existing factual record, would entitle him to relief. Miller, 161 F.3d at 1253. The Oklahoma courts refused to grant Mr. Smith’s request for an evidentiary hearing on any of the claims in his application for post-conviction relief. The federal district court found that Mr. Smith met the standard for an evidentiary hearing as to his claims of ineffective assistance of counsel. Smith v. Gibson, No. CIV-98-601-R, at 3 (W.D.Okla.2002). We therefore review the federal district court’s findings based upon facts adduced at the evidentiary hearing for clear error. Rogers, 173 F.3d at 1282. We will not, however, review Mr." }, { "docid": "5862808", "title": "", "text": "Shak-ir could access a weapon in his bag.” Id. at 321. Much of the same analysis, as we discussed, applies here. As Cook points out, there are factual differences in his case. For example, Shakir was standing up, and his large size made it initially difficult to handcuff him, whereas Cook’s build is slight and he was face down on the ground. None of the factual distinctions relied on by Cook, however, are sufficient to alter our analysis. Ill We next turn to Cook’s claim that the district court abused its discretion' in failing to hold an evidentiary hearing to determine whether the initial search of his backpack actually occurred. “An evidentiary hearing on a motion to suppress need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.” United States v. Howell, 231 F.3d 615, 620 (9th Cir.2000); see also United States v. Batiste, 868 F.2d 1089, 1093 (9th Cir.1989) (stating that the district court was not required to hold an evidentiary hearing on the defendant’s motion to suppress where the defendant failed to dispute any material fact in the government’s proffer). We review the district court’s denial of an evidentiary hearing for abuse of discretion. See United States v. Hoang, 486 F.3d 1156, 1163 (9th Cir .2007). Cook’s first motion to suppress failed to raise a material factual dispute. The district court nevertheless invited Cook to clarify by directing him to confirm that “the motion can be resolved without an evidentiary hearing” and to identify facts that Cook “contend[s] are in dispute.” In response, Cook neither asked for an evi-dentiary hearing nor identified a single disputed fact. He instead focused on a new legal argument that his arrest was not supported by probable cause. In short, because Cook failed to “allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist,” the court did not abuse its discretion in failing to hold an evidentiary hearing. Howell, 231 F.3d at 620." } ]

[ { "docid": "19710419", "title": "", "text": "process claims arising from his challenge to the prison’s disciplinary proceeding, because they could fairly be construed as a challenge for loss of good time credit. Trimble warned that by treating a prisoner’s defective § 1983 claim as a habeas petition, a federal court might inadvertently prevent the prisoner federal judicial consideration of remaining habe-as claims the prisoner might have. Id. Here, the district court appropriately protected Blueford’s interest by following this court’s caution to “state that the prisoner’s claims must be addressed in a habeas petition, and dismiss the 1983 claims without prejudiced” Id. Exhaustion of State Remedies Regarding Trust Account Blueford contends that the district court erred in awarding summary judgment on his claimed due process violation concerning his prison trust account. We disagree. Whether a state prisoner must exhaust state remedies before pursuing a federal constitutional claim is a question of law to be reviewed de novo. Cf. Cooney v. Edwards, 971 F.2d 345, 346 (9th Cir.1992) (holding that whether a federal prisoner is required to exhaust administrative remedies before pursuing a Bivens action is a question of law). Also reviewing the court’s summary judgment decision de novo, Bagdadi, 84 F.3d at 1197, we find Blueford’s failure to dispute the district court’s conclusion that California has an adequate postdeprivation remedy for the loss of his trust account funds fatal to his § 1983 claim. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984) (“[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of ... the Due Process Clause ... if a meaningful postdeprivation remedy for the loss is available.”); see also Barnett v. Centoni 31 F.3d 813, 816 (9th Cir.1994) (per curiam) (applying Hudson and holding a state’s adequate postdeprivation remedy for property loss bars a prisoner’s § 1983 challenge to the loss). Blueford has no federal due process claim “until and unless [the state] provides or refuses to provide a suitable postdeprivation remedy.” Hudson, 468 U.S. at 533, 104 S.Ct. at 3204. Magistrate Judge Findings Blueford challenges pro se various discovery and briefing" } ]

[ { "docid": "22433337", "title": "", "text": "court to dismiss without prejudice will not be disturbed except for an abuse of discretion. Craighead v. E.F. Hutton, Inc., 899 F.2d 485, 495 (6th Cir.1990). A court will find an abuse of discretion where it has a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Balani v. INS, 669 F.2d 1157, 1160 (6th Cir.1982) (citations omitted). A court also abuses its discretion where it “improperly applies the law or uses an erroneous legal standard.” Gaston Drugs, Inc. v. Metropolitan Life Ins. Co., 823 F.2d 984, 988 (6th Cir.1987) (quoting Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.), cert dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985)). A In Heck v. Humphrey, the Supreme Court held that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). This “favorable termination” requirement was extended to prisoner allegations of due process violations in prison discipline hearings resulting in deprivation of good-time credits in Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). This court has, in unpublished opinions, applied the Heck/Edwards doctrine generally to prevent a prisoner found guilty in a prison disciplinary hearing from using § 1983 to collaterally attack the hearing’s validity. See, e.g., Metcalf v. FNU Vieta, No. 97-1691, 1998 WL 476254 (6th Cir. August 3, 1998); Foster-Bey v. Duncan, No. 97-1617, 1998 WL 124002 (6th Cir. March 13, 1998). Huey contends that since he has long since served his thirty days’ detention, Heck should not" }, { "docid": "16577988", "title": "", "text": "has failed to state a cognizable constitutional claim because he does not state that this hearing was ever appealed or invalidated. Thus, he is seeking damages for alleged due process violations he appears not to have directly challenged. Plaintiffs claim is subject to dismissal because an inmate has grounds for an action for damages under § 1983 against those who may have violated his constitutional rights only if relief from the underlying ‘conviction’ is obtained. See Burnell v. Coughlin, 975 F.Supp. 473, 475-479 (W.D.N.Y.1997) (an inmate cannot seek money damages for alleged deprivations arising out of a prison disciplinary hearing by commencing an action under § 1983 unless the results of that hearing already have been invalidated; the proper procedure is to challenge directly the results of the hearing by appeal, administrative review, collateral attack or habeas corpus). See also Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (an inmate’s claim for damages resulting from due process violations during his criminal trial was not cognizable under § 1983 until the conviction or sentence was invalidated on direct appeal or by a habeas corpus petition); Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (an inmate’s suit for damages pursuant to 42 U.S.C. § 1983, arising out of alleged procedural due process violations during a prison disciplinary hearing, was barred by the holding in Heck); Higgins v. Coombe, 1997 WL 328623 (S.D.N.Y.1997) (where inmate claimed that defendants retaliated against him by conducting a biased disciplinary hearing, court dismissed his substantive due process claim as barred by Edwards). Plaintiffs claim regarding the alleged due process violations at the January 22,1998 hearing are therefore dismissed with prejudice. To the extent that plaintiff is claiming that defendant Wenderlich conspired to deprive him of his civil rights under § 1983, plaintiffs claim also fails. Plaintiffs conclu-sory, vague and general allegations of a conspiracy are insufficient to state a cognizable claim under § 1983. Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997), quoting Leon v. Murphy, 988 F.2d 303, 311 (2d Cir.1993) (citation and internal quotation" }, { "docid": "8067603", "title": "", "text": "disciplinary conviction on administrative appeal. While Portley-El was serving his term of punitive segregation, Colorado Department of Corrections officials came to Minnesota and held a special classifications hearing, following which his medium security classification was changed to Maximum Security, Administrative Segregation, as a result of this incident. Portley-El was later returned to Colorado under that more restrictive security classification. Portley-El commenced this § 1983 action against four Minnesota and two Colorado prison officials, alleging that his right to due process was violated at both the Minnesota and Colorado disciplinary proceedings, and that Warden Brill violated Portley-El’s right to equal protection by charging and convicting him on account of his race. Portley-El filed a 96-page complaint, together with motions for partial summary judgment and a preliminary injunction, briefs and declarations in support of those motions, and a statement of undisputed facts. For relief, Portley-El sought the expunging of the disciplinary conviction, restoration of his good time credits and all other privileges, suspension of his administrative segregation classification in Colorado, and money damages. After screening Portley-El’s pleadings in accordance with 28 U.S.C. § 1915A, Magistrate Judge Jonathan Lebedoff recommended that the due process claims be dismissed because (i) thirty days in punitive segregation is not an “atypical and significant hardship ... in relation to the ordinary incidents of prison life” that would give rise to a constitutionally protected liberty interest under Sandin, 515 U.S. at 484, 115 S.Ct. 2293; and (ii) habeas corpus is the exclusive federal remedy for a loss of good time credits under Heck, 512 U.S. at 483, 114 S.Ct. 2364. District Judge Richard H. Kyle adopted that recommendation over Portley-El’s objections. After further motion practice, Magistrate Judge Lebedoff recommended that the equal protection claim against Warden Brill be dismissed as Nee/c-barred. Judge Kyle again adopted that recommendation. Portley-El appeals both rulings. We review the dismissals de novo. See Powells v. Minnehaha County Sheriff Dep’t, 198 F.3d 711, 712 (8th Cir.1999). II. Portley-El argues that the district court erred in dismissing his due process claims under Sandin because whether prison discipline “imposes atypical and significant hardship on the inmate" }, { "docid": "17969887", "title": "", "text": "Court is a procedural bar to federal habeas relief unless the petitioner shows “both cause for failing to bring the [state] claim ... and actual prejudice from the failure to consider his federal claims”), cert. denied 515 U.S. 1118, 115 S.Ct. 2269, 132 L.Ed.2d 275 (1995). In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court considered a § 1983 action in which a prisoner sought money damages for unconstitutional acts that led to his arrest and conviction. There, the Supreme Court held: [W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487. Heck thus requires, as an element of the § 1983 claim, that the plaintiff demonstrate that his sentence or conviction has been reversed, expunged, or otherwise invalidated by another tribunal, or, that it has been “called into question” by the issuance of a writ of habeas corpus in federal court. Id. at 484-87. Recently, in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Supreme Court applied the reasoning set forth in Heck to a § 1983 case in which the underlying proceeding was a prison administrative hearing that resulted in the plaintiffs loss of good time credits. Edwards, 117 S.Ct. at 1584. Edwards held that an allegation of procedural defects in a prison disciplinary hearing does “imply the invalidity of the punishment,” and as such, a § 1983 lawsuit cannot proceed without a finding from another forum that the underlying proceeding and punishment were invalid. Id. 117 S.Ct. at 1588; see also Clarke v. Stalder, 121 F.3d 222, 226 (5th Cir.1997); Burnell v. Coughlin, 975 F.Supp. 473, 477 (W.D.N.Y. 1997) (holding that the proper procedures for challenging the results of a prison disciplinary hearing are “appeal, administrative review, collateral attack, or habeas corpus”)." }, { "docid": "23290949", "title": "", "text": "CANBY, Circuit Judge. Plaintiff Narvis Nonnette brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging that officials of the Cali-patria State Prison in California violated his constitutional rights by: (1) miscalculating his prison sentence and (2) revoking 360 days of his good-time credits and imposing 100 days of administrative segregation in a disciplinary proceeding without supporting evidence. The district court dismissed the miscalculation claims and granted summary judgment for the defendants on the disciplinary claim. The district court based both rulings on the fact that Nonnette was a state prisoner and that his civil rights claims necessarily challenged the validity of the underlying decisions that caused his continued confinement. Because those determinations had not been set aside, the district court held that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), precluded Nonnette from maintaining his § 1983 action. Nonnette appeals the district court’s rulings. He points out that he has now completed serving the incarceration portion of his sentence (including the additional year that resulted from his disciplinary proceeding) and has been released to parole. He argues that, because any direct challenge to his disciplinary proceeding would be moot, see Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), he must be allowed to maintain his § 1983 action. We conclude that he is correct, and we therefore vacate the decision of the district court and remand for further proceedings. Background Nonnette’s disciplinary proceeding arose out of an inmate fight in July 1998. Non-nette was found to have stabbed another inmate, despite his contention that all of the evidence indicated that the inmate had been stabbed before Nonnette joined the fight. Nonnette was assessed 360 days loss of good-time credits, and was placed in administrative segregation for 100 days. Nonnette filed a complaint in the U.S. District Court for the Southern District of California alleging three due process violations pursuant to 42 U.S.C. § 1983. The first two claims asserted that Nonnette’s release date initially had been improperly calculated, and that he wrongfully had been denied work credits" }, { "docid": "16442639", "title": "", "text": "FAGG, Circuit Judge. David Allen Sheldon, an inmate at the Iowa State Penitentiary (ISP), mailed a letter to an inmate-produced publication at another prison. In the letter’s postscript, Sheldon had written, “We have your [expletive] warden Thomas E. Hundley, ... you could have kept him.” After prison officials seized the letter, Sheldon was found guilty of violating an ISP rule against verbal abuse. As a result, Sheldon received fifteen days of disciplinary detention and lost sixteen days of good conduct time. Sheldon did not challenge the disciplinary action in any state or federal proceeding before filing this 42 U.S.C. § 1983 lawsuit. Sheldon’s complaint alleged his First Amendment rights were violated when Hundley, the ISP warden, threatened him with discipline for writing the comment, when Major Gra-bowski, an ISP correctional officer, charged him with disciplinary violations, and when Charles Harper, an ISP administrative law judge, found him guilty of the disciplinary violation and imposed sanctions for it. In his prayer for relief, Sheldon sought money damages for interference with his First Amendment rights and for time spent in disciplinary detention, and any other appropriate relief. The district court granted judgment on the pleadings and dismissed Sheldon’s entire complaint with prejudice for failure to state a claim. The district court construed Sheldon’s complaint as alleging only that the disciplinary action violated his First Amendment rights, and as seeking recovery of lost good-time credits. The district court held that under Heck v. Humphrey, — U.S. -, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a prisoner cannot bring a § 1983' claim challenging a disciplinary proceeding resulting in a loss of good-time credits before successfully invalidating the disciplinary ruling. Sheldon appeals. We affirm, but modify the dismissal to be one without prejudice to permit Sheldon to refile the action if the state or a federal habeas court invalidates the disciplinary ruling. In Heck, the Supreme Court held that if a judgment favorable to a prisoner in a § 1983 action would necessarily imply the invalidity of the prisoner’s conviction or the length of the prisoner’s sentence, then a § 1983 action for damages" }, { "docid": "15075232", "title": "", "text": "v. Keane, 1996 WL 465751 at *3 & n. 1. B. Edwards v. Balisok and Its Interpretation In May 1997, two years after its Sandin decision, the Supreme Court decided Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). Edwards involved a prisoner § 1983 action seeking damages for alleged due process violations during a prison disciplinary proceeding that resulted in a punishment of disciplinary segregation and loss of good time credits. 117 S.Ct. at 1587. Without even mentioning Sandin, the Supreme Court held that a § 1983 damage claim would not lie because it necessarily implied the invalidity of the prisoner’s punishment which had not yet been set aside. The Supreme Court’s opinion in Edwards began with a discussion of the Supreme Court’s prior Heck v. Humphrey decision: In Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372-73, 129 L.Ed.2d 383 (1994), this Court held that a state prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated. This ease presents the question whether a claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of good-time credits is cognizable under § 1983. Edwards v. Balisok, 117 S.Ct. at 1586. Heck, which Edwards relied upon, was a § 1983 claim for due process violations during a state criminal prosecution, a suit that the Supreme Court analogized to a malicious prosecution action. In Heck, the Supreme Court held: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance" }, { "docid": "8067602", "title": "", "text": "LOKEN, Circuit Judge. Colorado inmate Brother Patrick Port-ley-El, an African-American, was disciplined for hitting a white inmate with a baseball bat during a racial disturbance at the Minnesota correctional facility where Portley-El was incarcerated. He brought this § 1983 action against six prison officials, alleging that his rights to due process and equal protection were violated by the disciplinary proceedings. The district court dismissed all claims under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Portley-El appeals. We affirm. I. During the racial disturbance, a black inmate attacked one or more white inmates with an aluminum softball bat in the prison recreation yard. Minnesota prison officials accused Portley-El of wielding the bat. After a July 1998 hearing at which conflicting evidence was presented, the hearing board found Portley-El guilty of the charge and sentenced him to thirty days in punitive segregation plus the loss of forty-five days of good time credits. Warden Hoyt Brill upheld the disciplinary conviction on administrative appeal. While Portley-El was serving his term of punitive segregation, Colorado Department of Corrections officials came to Minnesota and held a special classifications hearing, following which his medium security classification was changed to Maximum Security, Administrative Segregation, as a result of this incident. Portley-El was later returned to Colorado under that more restrictive security classification. Portley-El commenced this § 1983 action against four Minnesota and two Colorado prison officials, alleging that his right to due process was violated at both the Minnesota and Colorado disciplinary proceedings, and that Warden Brill violated Portley-El’s right to equal protection by charging and convicting him on account of his race. Portley-El filed a 96-page complaint, together with motions for partial summary judgment and a preliminary injunction, briefs and declarations in support of those motions, and a statement of undisputed facts. For relief, Portley-El sought the expunging of the disciplinary conviction, restoration of his good time credits and all other privileges, suspension of his administrative segregation classification in Colorado, and money damages. After screening Portley-El’s pleadings" }, { "docid": "23290951", "title": "", "text": "that would have led to an earlier release. The third cause of action asserted that his due process rights were violated by his disciplinary proceeding and the ensuing loss of good-time credits and administrative segregation. The complaint sought injunctive relief and damages. The district court dismissed Nonnette’s first two causes of action for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). The court held that, because the claims challenged the validity of the decisions underlying Nonnette’s confinement, Non-nette was required to proceed first in ha-beas corpus, see Preiser v. Rodriguez, 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and could not bring a § 1983 action for damages until he had succeeded in invalidating his confinement through ha-beas. See Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. The district court declined to dismiss Nonnette’s third claim, because Nonnette asserted that he had received a paper invalidating his disciplinary proceeding. Upon the State’s later motion for summary judgment, however, the evidence indicated that the disciplinary ruling remained in force, and the district court accordingly granted summary judgment on the third claim on the authority of Heck. Discussion Both parties concentrate their arguments on the summary judgment ruling, indicating that those arguments will also apply to the dismissals of the first two claims. We follow the same course in our analysis. We review de novo both grants of summary judgment and dismissals for failure to state a claim. Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc) (summary judgment); Berry v. Valence Technology, Inc., 175 F.3d 699, 706 (9th Cir.1999) (Rule 12(b)(6) dismissal). I It has been clear for over thirty years that a state prisoner seeking injunctive relief against the denial or revocation of good-time credits must proceed in habeas corpus, and not under § 1983. See Preiser, 411 U.S. at 489, 93 S.Ct. 1827. Nonnette also seeks damages, however, and that issue was addressed by the more recent decision of Heck v. Humphrey. There, the Court held that a state prisoner’s damages claims that necessarily implied the invalidity of his conviction or sentence could" }, { "docid": "11771001", "title": "", "text": "not decide whether the incident in the psychiatric unit presents disputed issues of material fact precluding summary judgment, however, because Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) bars Lewis’ claim. Heck bars recovery of damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid.” Id. at 486, 114 S.Ct. at 2372. We apply the rationale of Heck to prison disciplinary hearings. Miller v. Indiana Dep’t of Corrections, 75 F.3d 330 (7th Cir.1996). The result is that Heck “precludes monetary relief while a prison disciplinary order stands.” Evans v. McBride, 94 F.3d 1062, 1063 (7th Cir. 1996). Even though Lewis is not seeking to have his lost good-time credits restored, if Lewis were awarded damages premised on the assumption that he was raped in the psychiatric unit, it would necessarily call into question the CAB’s finding that he violated prison rules by engaging in consensual sex. For this reason, no claim for damages under § 1983 can accrue until such time as the result of the disciplinary hearing has been invalidated. Heck, 512 U.S. at 486-87, 114 S.Ct. at 2372. Thus, the claim is not cognizable under § 1983, and the district court should have dismissed it for failure to state a claim under Fed.R.Civ.P. 12(b)(6). CONCLUSION We are not unsympathetic to the trauma Lewis experienced while incarcerated at the WCC. And we once again urge prison officials to take any and all reasonable steps to stamp out gang violence in their respective institutions. See, e.g., David K. v. Lane, 839 F.2d at 1277-78. Nevertheless, we conclude that Lewis has failed to present evidence sufficient for a reasonable factfinder to conclude that the defendants knew of the impending risk to his safety, and consciously refused to prevent it. Jelinek, 90 F.3d at 243-44. As stated before, Lewis’ claim regarding the third incident is not cognizable under § 1983. Accordingly, we Modify the judgment of the district court and dismiss without prejudice Lewis’ complaint with respect to the third incident for failure to state a claim, and Affirm the judgment as" }, { "docid": "16442640", "title": "", "text": "time spent in disciplinary detention, and any other appropriate relief. The district court granted judgment on the pleadings and dismissed Sheldon’s entire complaint with prejudice for failure to state a claim. The district court construed Sheldon’s complaint as alleging only that the disciplinary action violated his First Amendment rights, and as seeking recovery of lost good-time credits. The district court held that under Heck v. Humphrey, — U.S. -, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a prisoner cannot bring a § 1983' claim challenging a disciplinary proceeding resulting in a loss of good-time credits before successfully invalidating the disciplinary ruling. Sheldon appeals. We affirm, but modify the dismissal to be one without prejudice to permit Sheldon to refile the action if the state or a federal habeas court invalidates the disciplinary ruling. In Heck, the Supreme Court held that if a judgment favorable to a prisoner in a § 1983 action would necessarily imply the invalidity of the prisoner’s conviction or the length of the prisoner’s sentence, then a § 1983 action for damages does not arise until the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by the issuance of a federal habeas writ. — U.S. at -, 114 S.Ct. at 2372. The Court reasoned that' a prisoner should not be able to use a suit for damages to avoid established procedures, like habeas corpus, for challenging the lawfulness of the fact or length of confinement. This reasoning applies whether the prisoner challenges a conviction imposing a sentence or a prison administrative ruling lengthening a sentence. Miller v. Indiana Dep’t of Corrections, 75 F.3d 330, 331 (7th Cir.1996). Thus, courts have applied Heck’s holding in the context of prison administrative rulings, including rulings in disciplinary proceedings, that affect the length of a prisoner’s sentence. Id.; see Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.1995) (per curiam) (dismissing § 1983 action under Heck where inmate attacked constitutionality of parole denial and sought immediate release); Armento-Bey v. Harper, 68 F.3d 215, 216 (8th" }, { "docid": "13286246", "title": "", "text": "against Razzoli. After the Disciplinary Committee action, but based on the same events, the United States Parole Commission withdrew Razzoli’s recommended parole release date and established a new date twenty-four months later, in effect delaying his eligibility for parole by two years. Razzoli filed a pro se complaint in district court here, alleging that the BOP staged the incident on which the actions of the Disciplinary Committee and Parole Commission were based. Although the complaint does not highlight the difference, it suggests that the Disciplinary Committee found him guilty only of possession and that the Parole Commission found him guilty of possession with intent to distribute. It further alleges that the Parole Commission conspired with the BOP and knowingly used false information against Razzoli. The complaint says that Razzoli never received a copy of any FBI report and suggests that the report must not have supported the Parole Commission’s determination. Before the complaint was served on either of the federal defendants, the district court dismissed the case sua sponte for failure to state a claim on which relief could be granted. The court found that Razzoli’s claims amounted to collateral attacks on the actions of the Disciplinary Committee, and that under Balisok and the key predecessor cases of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), “the sole federal remedy for challenging the loss of good time credit is a petition for habeas corpus.” Razzoli v. Federal Bureau of Prisons No. 99-1711 (D.D.C. July 30, 1999). Under Balisok, a non-habeas civil action by a prisoner is not cognizable where “ ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.” Balisok, 520 U.S. at 643, 117 S.Ct. 1584 (quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364). We review the district court’s dismissal for failure to state a claim de novo. See Davis v. District of Columbia, 158 F.3d 1342," }, { "docid": "23466395", "title": "", "text": "claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.” Id. at 643, 117 S.Ct. 1584 (quoting Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). This rule also applies to challenges to punishments imposed as a result of prison disciplinary infractions. See Edwards, 520 U.S. at 648, 117 S.Ct. 1584. We have considered the allegations underlying Mr. Cardoso’s due-process claim, and we agree with the district court that a judgment in his favor would necessarily imply the invalidity of his disciplinary conviction. Consequently, because Mr. Cardoso has not shown that the conviction for individual disruptive behavior has previously been invalidated, his request for damages resulting from his prison disciplinary proceedings was correctly denied based on Heck and Edwards. The judgment of the district court is AFFIRMED. . Mr. Cardoso concedes that defendant Ward did not participate personally in any of the actions that allegedly violated his constitutional rights. Accordingly, he has not stated a claim against Mr. Ward. Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006) (\"In order for liability to arise under § 1983, a defendant's direct personal responsibility for the claimed deprivation of a constitutional right must be established.”). We construe Mr. Cardoso’s pleadings liberally to conclude that they state a claim against each of the remaining defendants." }, { "docid": "16224991", "title": "", "text": "time, and found that a liberty interested existed in retaining one’s accrued good time credits”). B. Impact of Edwards v. Balisok Although Burnell’s loss of good time credits implicates a constitutionally protected liberty interest, another impediment to a due process analysis exists. In Edwards v. Balisok, - U.S. -, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) the United States Supreme Court determined that an inmate’s suit for damages pursuant to 42 U.S.C. § 1983, arising out of alleged procedural due process violations during a prison disciplinary hearing which resulted in loss of good time credits, was barred by its prior decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, an inmate’s claim for damages resulting from due process violations during his criminal trial was found not cognizable under 42 U.S.C. § 1983 because a “judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Until the conviction or sentence were invalidated on direct appeal or by a habeas corpus petition, no civil action for damages would he. Id. at 487, 114 S.Ct. at 2372-73, cited in, Edwards, — U.S. at-, 117 S.Ct. at 1586. A review of Heck is helpful to fully understand Edwards. In Heck, the inmate plaintiff claimed that his conviction in state court was tainted by several constitutional infirmities, i.e., the state officials had conducted an arbitrary investigation, had knowingly destroyed exculpatory evidence, and had caused an illegal voice identification procedure to be used at the plaintiffs criminal trial. Heck sought damages, pursuant to 42 U.S.C. § 1983, only. He did not seek an injunction or release from imprisonment. At the time Heck commenced the § 1983 action his conviction was on appeal, and it was affirmed during the pendency of the action. Two habeas corpus petitions also were denied. The Supreme Court found that Heck’s allegations were not cognizable under § 1983 because, if valid, the § 1983 judgment would be inconsistent with the previously obtained criminal conviction, effectively rendering it invalid. [W]hen a state prisoner seeks damages in a § 1983" }, { "docid": "22949903", "title": "", "text": "OPINION OF THE COURT AMBRO, Circuit Judge. Antonio Torres, a former state prisoner who is no longer “in custody” within the meaning of 28 U.S.C. § 2254 (the federal habeas corpus statute), appeals the District Court’s grant of summary judgment dismissing his 42 U.S.C. § 1983 action, which alleged, inter alia, that his due process rights were violated when he was sanctioned for violating prison rules. The sanctions imposed on Torres did not re voke any good-time credits or otherwise affect the fact or length of his confinement; he was placed in disciplinary detention for 15 days and administrative custody for 120 days. Yet the District Court ruled that his due process claim was not cognizable under § 1983 because of the “favorable termination rule” announced in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and extended to prison disciplinary sanctions that alter the duration of a prisoner’s incarceration in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). Under that rule, a § 1983 plaintiff cannot seek damages for harm caused by actions the unlawfulness of which would necessarily render the fact or length of his confinement invalid, unless he can prove that the conviction, sentence, or prison disciplinary sanction that resulted from those actions has been reversed, invalidated, or called into question by a grant of federal habeas corpus relief (in other words, terminated favorably to the plaintiff). Heck, 512 U.S. at 486-87, 114 S.Ct. 2364; Edwards, 520 U.S. at 646-48, 117 S.Ct. 1584. Torres’s appeal presents a question that neither the Supreme Court nor our Court has decided: whether someone no longer in custody (and thus unable to petition for a writ of habeas corpus) can seek damages under § 1983 for an allegedly unconstitutional prison disciplinary sanction that did not affect the fact or length of his confinement. We hold that the favorable termination rule does not apply to claims that implicate only the conditions, and not the fact or duration, of a prisoner’s incarceration. We thus hold that the District Court erred in ruling that Torres’s" }, { "docid": "8067611", "title": "", "text": "look to the essence of the plaintiffs claims.” Sheldon, 83 F.3d at 233. Because Portley-El seeks damages for the imposition of discipline that included the loss of good time credits, his damage claim challenges “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” and is Heck-barred. 512 U.S. at 486, 114 S.Ct. 2364. Finally, Portley-El argues that his equal protection claim against Warden Brill is not subject to Heck’s “favorable termination” rule because equal protection focuses on discriminatory treatment, not on the process due in prison disciplinary proceedings. But that is not a relevant^ distinction. The rule in Heck covers any § 1983 claim that would “necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement.” 512 U.S. at 486, 114 S.Ct. 2364. Thus, the relevant inquiry is not the constitutional underpinning of the inmate’s § 1983 cause of action. In Sheldon, we held that Heck barred a § 1983 damage claim under the First Amendment because, if the claim were upheld, “the result of the disciplinary proceeding is wrong and his punishment for the rule violation — both the loss of good-time credits and the disciplinary detention — is improper.” 83 F.3d at 233. Likewise, in this case, Portley-El seeks equal protection damages on the ground that Warden Brill charged and convicted him on account of his race. If Portley-El were to succeed on this claim, he would necessarily demonstrate Brill’s bias in affirming his discipline, thereby rendering the disciplinary result invalid, including the loss of good time credits. See Edwards, 520 U.S. at 647, 117 S.Ct. 1584 (“[a] criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how strong the evidence against him”). Thus, the equal protection claim, like the due process damage claim, is a direct attack on the validity of a disciplinary decision that resulted in the loss of good time credits. This claim, too, is Nec/c-barred. The judgment of the district court is affirmed. . To the same effect, two of our unpublished decisions have upheld the dismissal of due" }, { "docid": "13286247", "title": "", "text": "on which relief could be granted. The court found that Razzoli’s claims amounted to collateral attacks on the actions of the Disciplinary Committee, and that under Balisok and the key predecessor cases of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), “the sole federal remedy for challenging the loss of good time credit is a petition for habeas corpus.” Razzoli v. Federal Bureau of Prisons No. 99-1711 (D.D.C. July 30, 1999). Under Balisok, a non-habeas civil action by a prisoner is not cognizable where “ ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.” Balisok, 520 U.S. at 643, 117 S.Ct. 1584 (quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364). We review the district court’s dismissal for failure to state a claim de novo. See Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C.Cir.1998). Dismissal under Rule 12(b)(6) is proper if, taking all the material allegations of the complaint as admitted and construing them in plaintiffs favor, we find that he has failed to allege each of the material elements of his cause of action. See Taylor v. Federal Deposit Insurance Corp., 132 F.3d 753, 761 (D.C.Cir.1997); see also Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). In addition, we are bound to read the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir.1999). The application of Preiser, Heck, and Balisok complicates our task, for we must find allegations that are not only sufficient to make out claims under the statutes, but that also do not trigger the habeas-channeling rule. We appointed amicus curiae to argue the issues for appellant. The theory of Razzoli’s Privacy Act claim is that BOP and the Parole Commission violated 5 U.S.C. § 552a(e)(5) by maintaining in their" }, { "docid": "22137063", "title": "", "text": "BRUNETTI, Circuit Judge: Washington state prisoner Richard A. Butterfield appeals pro se the district court’s dismissal of his 42 U.S.C. § 1983 action alleging that defendants violated his due process rights when they relied on false information in Butterfield’s prison file to find him ineligible for parole. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s Fed.R.Civ.P. 12(b)(6) dismissal for failure to state a claim, see Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988), and we affirm. I. Butterfield contends that the district court erred when it found that his action was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Heck precludes a prisoner’s § 1983 claim that, if successful, would invalidate a conviction or sentence “where that conviction [or sentence] has not been reversed, expunged or called into question by issuance of a writ of habeas corpus.” Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996) (citing Heck, 512 U.S. at 486-87, 114 S.Ct. at 2371-72). We previously held that Heck does not bar a prisoner’s § 1983 claim that purports to challenge an allegedly unconstitutional prison hearing solely on the ground that the hearing was procedurally defective. See Gotcher v. Wood, 66 F.3d 1097, 1099 (9th Cir.1995), vacated, — U.S. -, 117 S.Ct. 1840, 137 L.Ed.2d 1045 (1997) (holding that a prisoner who challenged prison procedures used to deny him good-time credits, and not actual denial of those credits, stated a cognizable claim under § 1983). That rule was expressly disapproved by the Supreme Court in Edwards v. Balisok, — U.S.-,-, 117 S.Ct. 1584, 1587, 137 L.Ed.2d 906 (1997). In Balisok, the Supreme Court held that a prisoner’s challenge to the procedures used in a disciplinary proceeding resulting in the denial of good-time credit was not cognizable under § 1983. Id. at-, 117 S.Ct. at 1587. The Balisok Court concluded that the determination whether a cause of action may be cognizable under § 1983 may not be made simply upon the distinction between those claims which challenge the process used in" }, { "docid": "23466394", "title": "", "text": "and convict him of the misconduct violation; (2) defendant Courtney prepared a memo falsely accusing him of “bugging [M]rs. Vanwey about his write up,” R. Vol. I, Doc. 22, Attach. 7 at 6; (3) he did not receive advance notice of the disciplinary hearing; (4) the disciplinary hearing officer (DHO) ruled against him, finding erroneously that “some evidence” supported the conviction; (5) the DHO did not state the facts on which inferences were based or give reasons for finding that the report of the prison official was more credible than the reports by Mr. Cardoso and his witness; and (6) the DHO based her decision, in part, on a mistaken belief that Mr. Cardo-so violated a rule against handing request-to-staff forms directly to prison personnel. As relief for the alleged due-process violations, Mr. Cardoso is seeking to recover money damages. Id., Vol. II, Doc. 46, at 5. Mr. Cardoso’s claims are foreclosed by Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). There, the Supreme Court explained that “a state prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.” Id. at 643, 117 S.Ct. 1584 (quoting Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). This rule also applies to challenges to punishments imposed as a result of prison disciplinary infractions. See Edwards, 520 U.S. at 648, 117 S.Ct. 1584. We have considered the allegations underlying Mr. Cardoso’s due-process claim, and we agree with the district court that a judgment in his favor would necessarily imply the invalidity of his disciplinary conviction. Consequently, because Mr. Cardoso has not shown that the conviction for individual disruptive behavior has previously been invalidated, his request for damages resulting from his prison disciplinary proceedings was correctly denied based on Heck and Edwards. The judgment of the district court is AFFIRMED. . Mr. Cardoso concedes that defendant Ward did not participate" }, { "docid": "15075234", "title": "", "text": "of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must he dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. at 2372-73 (fns. omitted & emphasis added). Edwards applied Heck to a prisoner’s challenge to the prison disciplinary proceeding that resulted in a deprivation of good time credits: “We conclude, therefore, that [the plaintiff inmate’s] claim for declaratory relief and money damages, based on allegations of deceit and bias on the part of the [prison] decisionmaker that necessarily imply the invalidity of the punishment imposed, is not cognizable under § 1983.” Edwards v. Balisok, 117 S.Ct. at 1589. There is a Circuit split as to Edwards’ effect on § 1983 due process claims concerning prison disciplinary proceedings that result in SHU/keeplock punishment but no loss of good time credits. In Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir.1997), the Seventh Circuit dismissed a § 1983 claim seeking damages for prison disciplinary segregation without loss of good time credit, citing Heck v. Humphrey and Edwards v. Balisok. Stone-Bey v. Barnes, 120 F.3d at 719, 721-22. The Seventh Circuit explained: Does it make any difference in applying Heck that the sentence imposed was one of disciplinary segregation alone, as opposed to segregation coupled with a loss of good-time credits? ... In our view, it does not. The Supreme Court was concerned in Heck not only with the particular sentence" } ]

[ { "docid": "4061183", "title": "", "text": "than a return on equity was involved in the 2% allowance. In addition to the Secretary’s opinion then that return on equity might be an actual cost, there was the problem of the ability to adequately measure costs, the concern that Medicare patients may require more nursing care, and the concern that the program would need to attract hospitals to participate. These additional concerns may well have played a part in congressional acceptance. There was also the need to get the program underway. The Hearings took place in May and the program was to begin in July. It is the Secretary’s position now that he incorrectly paid return on equity to nonprofit hospitals during the period 1966 to 1969 as part of the 2% allowance. From the discussions quoted above, the Secretary’s interpretation of congressional direction is entirely reasonable and certainly not arbitrary and capricious. There is also the argument that Congress has ratified the Secretary’s action in removing the 2% allowance and hence reimbursement for return on equity to non-profit hospitals by failing to take any action to amend either § 1395x(v)(l)(A) or § 1395x(v)(l)(B) in the twelve years since 1969. The court in Hospital Authority of Floyd County, Georgia v. Schweiker, 522 F.Supp. 569 (N.D.Ga.1981), addressed the question of congressional ratification of the 1969 actions taken by the Secretary and concluded that its failure to amend section § 1395x(v)(l)(B) vindicated the Secretary’s decision to provide the allowance only to proprietary facilities. Congress amended the Medicare Act in 1972 and left the sections in question intact. In a report issued to the Senate Finance Committee in February, 1970, a full eight months after the 2% allowance had been discontinued, the Committee staff specifically addressed the 2% figure: The 2-percent bonus on top of accounted-for costs was added to Medicare reimbursement by HEW regulation in 1966; it was subsequently removed by HEW regulation in 1969. The bonus had been rationalized as a “growth” factor by hospitals and by Social Security as an allowance for costs actually incurred but unidentifiable due to problems in cost-finding during the initial stages of Medicare." } ]

[ { "docid": "23594620", "title": "", "text": "714 F.2d 872 (7th Cir. 1983); Hospital Authority of Floyd County, Georgia v. Heckler, 707 F.2d 456 (11th Cir. 1983); Saline Community Hospital Association v. Schweiker, 554 F.Supp. 1133 (E.D. Mich.1983). We believe these decisions to be sound and do not believe that reiterating the courts’ analyses is necessary. Thus, because a return on equity in aircraft used for construction is not a “cost,” such as depreciation of the aircraft, it cannot be added to the “historical cost” of the facilities being constructed. Thus, we affirm the district court’s judgment on this issue. V. CONCLUSION. The plaintiffs have advanced many compelling arguments in support of their position on all four issues. Were we making the agency decision or devising Medicare regulations we might well adopt the outcome they urge upon us. We must be mindful, however, that the standard of our review requires that we uphold the Secretary’s decision if it is reasonably consistent with the statute and is not arbitrary or capricious. We are unconvinced that the Secretary’s determination is unreasonable or irrational. Thus, we affirm the district court’s judgment against the plaintiffs, but reverse the district court’s judgment against the Secretary. The plaintiffs shall bear the costs of this appeal. AFFIRMED IN PART and REVERSED IN PART. . 42 U.S.C. § 1395x(u): The term “provider of services” means a hospital, skilled nursing facility, comprehensive outpatient rehabiliitation facility, or home health agency, hospice program, or, for purposes of section 1395f(g) and section 1395n(e) of this title, a fund. An entity is an authorized Medicare provider by virtue of a contract, called an 1866 agreement, between it and the Secretary. Such contracts arise under § 1866 of the Social Security Act, 42 U.S.C. § 1395cc. . The Board consists of five members appointed by the Secretary. All five must be expert in the area of cost reimbursement; at least one must be a certified public accountant. 42 U.S.C. § 1395oo(h). . 42 Fed.Reg. 13,262 (1977) and 42 Fed.Reg. 57,351 (1977). . The plaintiffs did not seek judicial review of the Board’s decision with regard to the two issues decided in" }, { "docid": "8756736", "title": "", "text": "9748. The plaintiffs have not brought forward any regulations which affirmatively authorize a return on equity for nonprofit hospitals. They are relegated to the very general reasonable cost standard defined in § 1395x(v)(l)(A). As noted above, the Secretary’s position is that the intent of Congress, as set forth in § 1395x(v)(l)(A), in light of its legislative history, is that a return on equity is not a reasonable cost. This is also the position of the courts which have viewed this issue. The- legislative history of the return on equity issue has been quoted exhaustively by both parties to this litigation. It has also been summarized in Hospital Authority of Floyd County, Georgia v. Schweiker, 522 F.Supp. 569 (N.D.Ga.1981) [, aff’d, 707 F.2d 456 (11th Cir.1983) ]. The plaintiffs’ argument that a return on equity is a reasonable cost under § 1395x(v)(l)(A) is not borne out by the legislative history. The bulk of the plaintiffs' authority is testimony from the transcript of the 1966 Senate Finance Committee hearings on the issue of reimbursement guidelines. These hearings were held nearly a year after the Medicare Act was passed by Congress. “Such post-enactment history is not the surest guide of the legislative intent in initially passing the Act. Cf. Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.1980) [cert. den., Moon v. Roadway Express, Inc., 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980) ]. Nevertheless, the testimony of the witnesses and the remarks of the Senators are quite instructive.” Floyd County, supra, 522 F.Supp. at [571]. The plaintiffs have placed great stock in statements made by Robert Ball, the Commissioner of Social Security, who agreed with the policy of including a return on equity factor in the 2% allowance, because giving a return on equity solely to proprietary hospitals would foster the “anomalous result” of “reimbursing a profit-making organization more than a nonprofit organization for rendering exactly the same service — solely by reason of allowing return on investment in one case but not the other.” Reimbursement Guidelines for Medicare: Hearing before the Committee on Finance, United States Senate, 89th Cong.," }, { "docid": "5730241", "title": "", "text": "the Board declared it lacked jurisdiction, only on whether the Board’s jurisdictional decision was correct. Judge Bork, writing for the D.C.Circuit in Athens Community Hospital v. Schweiker, supra, faced the same issue presented here and concluded the “court has jurisdiction to review a decision by the PRRB that it lacks jurisdiction to review a determination of the fiscal intermediary”. 686 F.2d at 994. We find the Board’s determination that it lacked jurisdiction was correct. The claims at issue were not initially included in the cost reports, and they were not properly tendered as “amendments” to the cost reports. See Borgess Medical Center v. Schweiker, 563 F.Supp. 370 (W.D.Mich.1982): As for plaintiffs’ contention that they satisfied the criteria for amendment, the Court finds that the intermediaries’ decision was fully in accord with applicable law. Medicare regulations clearly do not allow a return on equity capital for nonprofit providers, so there was no material error which would justify amendment. While plaintiffs clearly wish they had made the claim in a timely fashion for the fiscal year 1979 so that they could pursue a challenge to the validity of such provisions, they did not do so here. 563 F.Supp. at 373-74 (emphasis added). We are appreciative of the detailed analysis of what was then an issue of first impression before the district court and agree with the Seventh and Eleventh Circuits, which subsequently adopted the district court’s analysis of the substantive issue presented by this case. See St. Francis Hospital Center v. Heckler, 714 F.2d 872 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984); Hospital Authority of Floyd County, Georgia v. Heckler, 707 F.2d 456 (11th Cir.1983). However, on review the court is convinced that the district court improperly reached the merits in this case. Therefore, the judgment is reversed and the case is remanded with directions to enter judgment in favor of the Secretary insofar as the appellants have failed to satisfy the jurisdictional prerequisites for challenging the regulations pertaining to reimbursement for net-invested-equity capital. . The Saline and Sinai institutions filed a joint complaint; the" }, { "docid": "23594567", "title": "", "text": "stock acquisitions of hospitals; (3) Costs of unconsummated acquisitions; and (4) A return on equity capital invested in aircraft used in the construction of HCA hospitals. Both the plaintiffs and the Secretary moved for summary judgment. The district court granted the plaintiffs’ motion for summary judgment on the stock maintenance costs issue, but granted the Secretary summary judgment with respect to the other issues. On appeal, the plaintiffs argue that the Secretary’s disallowance of unsuccessful acquisition costs and returns on net equity in goodwill and in aircraft used in hospital construction is arbitrary and capricious. Moreover, the plaintiffs also contend that the Secretary’s disallowance of these costs was untimely, and hence invalid. The Secretary argues that the stock maintenance costs were properly disallowed and that the district court erred in finding to the contrary. For the reasons set forth below, we hold that the district court erred in reversing the Secretary’s disallowance of the stock maintenance costs and thus reverse on this issue. We affirm, however, the district court’s summary judgment against the plaintiffs with regard to the other three claims, and find that the Secretary’s disallowance of these claims was timely. I. BACKGROUND. A. Medicare. This case arises under Title XVIII of the Social Security Act, known as the Medicare program. 42 U.S.C. §§ 1395a-1395xx. This legislation provides for federal reimbursement of medical care for the aged and certain disabled persons. 42 U.S.C. § 1395c. It accomplishes this, in part, through contractual arrangements with medical facilities to be “providers” of such medical care. These providers afford certain covered medical services to the program’s beneficiaries, for which they receive reimbursement from the government. 42 U.S.C. § 1395f. A provider is reimbursed for the “reasonable cost” of the services provided or, if lower, the customary charges for such services. 42 U.S.C. § 1395f(b)(l) (1976). In addition to “reasonable costs,” Medicare also pays, in certain instances, a “reasonable return on equity capital, including necessary working capital, invested in a facility and used in the furnishing of . .. services....” 42 U.S.C. § 1395x(v)(l)(B). Under this return on equity capital principle, proprietary providers," }, { "docid": "23594618", "title": "", "text": "crux of this issue is whether a return on equity capital is a “cost” under the Medicare Act, In support of their position, the plaintiffs note that 42 C.F.R. § 405.402(c) refers to 11 costs such as depreciation, interest on borrowed funds, a return on equity capital (in the case of proprietary providers), and other costs.. . . ” (Emphasis added.) They also note that section 405.402(f) provides that “a return on equity capital of proprietary facilities is an allowable cost in profit-making organizations.” (Emphasis added.) Moreover, they also note that, for example, we said in Homan & Crimen, Inc. v. Harris, supra, at 1205, the Secretary’s regulations “allow reimbursement of indirect costs required for patient care, such as depreciation on buildings and equipment, interest incurred on loans, and a return on equity capital.” (Emphasis added.) But while the plaintiffs cite several instances where both the Medicare regulations and judicial decisions do refer to a return on equity as a “cost,” we believe they fail to take into account the legislative history of the Medicare reimbursement scheme and the weight of recent court decisions specifically focusing on this question. Nowhere in the Medicare regulations is the word “cost” defined. It is used interchangeably with the words “allowance” and “expense” to mean something which is paid under the Medicare statute. Because corporate providers are paid a return on equity capital, the regulations and the courts often refer to this return as a “cost,” probably because a return on equity capital is included in the provider’s program reimbursement. However, a return on equity is a profit, not a cost, and it has its own independent basis in the Medicare Act. While reimbursable expenses paid by Medicare all fall under the “reasonable costs” provision, 42 U.S.C. § 1395x(v)(l)(A), a return on equity capital is provided for under section 1395x(v)(l)(B). Moreover, recent judicial decisions have carefully examined the legislative history of the return on equity capital provision and have demonstrated persuasively that a return on equity is not a “reasonable cost” as contemplated by the Medicare Act. See St. Francis Hospital Center v. Heckler," }, { "docid": "633384", "title": "", "text": "as our circuit has noted, when generally accepted accounting practices “do not accurately reflect the cost of patient care, as opposed to the cost of running a business, the Secretary reserves the right to prescribe different accounting practices.” North Clackamas Community Hospital v. Harris, 664 F.2d 701, 706 n. 16 (9th Cir.1980). Such principles support the Secretary’s denial decision. We also reject NME’s claim that because Medicare reimburses debt financing costs, it is illegitimate for the Secretary to deny reimbursement for stock maintenance costs. Stock maintenance costs, NME argues, are simply an aspect of equity financing, indistinguishable from underwriting and other debt financing costs that are reimbursed. Although the district court grounded its opinion on this apparent inconsistency, we find such an argument unpersuasive. Interest and other borrowing costs are reimbursed under Medicare only when the loan is necessary and has a “purpose reasonably related to patient care.” 42 C.F.R. § 405.419(b)(2)(h) (1985) (redesig-nated as 42 C.F.R. § 413.153). As indicated previously, stock maintenance costs do not meet these criteria. We likewise find invalid NME’s claim that the Secretary’s denial conflicts with a Medicare policy of attracting investment capital for purposes of encouraging corporate providers of Medicare services. Under 42 U.S.C. § 1395x(v)(l)(B), providers may receive a return-on-equity investment, a lump sum payment for the use of private capital in health care facilities. Although Congress could have allowed reimbursement for other expenses, it chose not to do so. As the district court in AMI noted, “[i]t is clear from the purpose behind the return on equity provision ..., its legislative history, and the provision itself that the return on equity capital provision cannot be used by plaintiffs to support the position that reasonable costs ... was meant to include costs for investment.” 466 F.Supp. at 613. Indeed, that Congress, in its numerous amendments to the Medicare Act, has never taken an action that conflicts with the agency’s position may be seen as “persuasive evidence” that it does not object to the government’s interpretation of the Act. FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 437, 106 S.Ct. 1931, 1932, 90" }, { "docid": "633385", "title": "", "text": "claim that the Secretary’s denial conflicts with a Medicare policy of attracting investment capital for purposes of encouraging corporate providers of Medicare services. Under 42 U.S.C. § 1395x(v)(l)(B), providers may receive a return-on-equity investment, a lump sum payment for the use of private capital in health care facilities. Although Congress could have allowed reimbursement for other expenses, it chose not to do so. As the district court in AMI noted, “[i]t is clear from the purpose behind the return on equity provision ..., its legislative history, and the provision itself that the return on equity capital provision cannot be used by plaintiffs to support the position that reasonable costs ... was meant to include costs for investment.” 466 F.Supp. at 613. Indeed, that Congress, in its numerous amendments to the Medicare Act, has never taken an action that conflicts with the agency’s position may be seen as “persuasive evidence” that it does not object to the government’s interpretation of the Act. FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 437, 106 S.Ct. 1931, 1932, 90 L.Ed.2d 428 (1986). Other courts consistently have respected the agency’s Medicare reimbursement limits. See AMI, 466 F.Supp. at 613-14; Sun Towers, 725 F.2d at 329 n. 26. Finally, we reject NME’s claim that it is inconsistent for the agency to reimburse costs of meetings and annual reports for non-profit providers, while denying them for for-profit providers. Although the Medicare Act mandates that the Secretary treat for-profit and not-for-profit organizations equitably, see 42 C.F.R. § 413.5(b)(5) (1989), distinctions are permissible so long as they have a rational basis. See Hospital Authority of Floyd County, Ga. v. Schweiker, 522 F.Supp. 569, 575-76 (N.D.Ga.1981), aff'd, 707 F.2d 456 (11th Cir.1983); AMI, 466 F.Supp. at 615. Differing treatment in the case at bar clearly is supportable. For-profit organizations primarily hold meetings and issue reports to aid shareholders and to attract investment that will increase returns. Non-profit organizations, by contrast, generally have no such financial motivation. To the contrary, as the AMI and Sun Towers courts recognized, their efforts primarily are aimed at providing improved medical care. See Sun Towers," }, { "docid": "8756735", "title": "", "text": "providers. It is not an out-of-pocket cost and was not the type of cost contemplated as reasonable, either direct or indirect, when Section 1861(v)(l)(A) was enacted. Section 1861(v)(l)(B) was enacted because under Section 1861(v)(l)(A) alone a return on equity capital could not be paid to proprietary providers. Therefore, the Board’s reliance on Section 1861(v)(l)(A) in this regard is erroneous. The Secretary’s position in regard to 42 C.F.R. § 405.429 (quoted above, concerning return on equity for proprietary hospitals) is correct. The terms of this statute are explicit in the distinction between proprietary and nonproprietary providers insofar as the return on equity issue is concerned. (In accord, Valley View Community Hospital v. United States, 679 F.2d 857 (U.S.Ct. C1.1982), ¶ 31,978, CCH Medicare and Medicaid Guide.) The rationale for the distinction expressed in the regulation is that proprietary providers must raise capital through funds invested by owners in the expectation of earning a profit. Alternatively, nonproprietary hospitals have other sources of funding, i.e., public contributions and governmental programs. Id. ¶ 31,978 Medicare and Medicaid Guide, at 9748. The plaintiffs have not brought forward any regulations which affirmatively authorize a return on equity for nonprofit hospitals. They are relegated to the very general reasonable cost standard defined in § 1395x(v)(l)(A). As noted above, the Secretary’s position is that the intent of Congress, as set forth in § 1395x(v)(l)(A), in light of its legislative history, is that a return on equity is not a reasonable cost. This is also the position of the courts which have viewed this issue. The- legislative history of the return on equity issue has been quoted exhaustively by both parties to this litigation. It has also been summarized in Hospital Authority of Floyd County, Georgia v. Schweiker, 522 F.Supp. 569 (N.D.Ga.1981) [, aff’d, 707 F.2d 456 (11th Cir.1983) ]. The plaintiffs’ argument that a return on equity is a reasonable cost under § 1395x(v)(l)(A) is not borne out by the legislative history. The bulk of the plaintiffs' authority is testimony from the transcript of the 1966 Senate Finance Committee hearings on the issue of reimbursement guidelines. These hearings" }, { "docid": "8756745", "title": "", "text": "Act was amended in October, Congressman John W. Byrnes of Wisconsin stated, “[Under existing law] the amount that will be paid to the individual nursing home or facility — shall be, and I quote, ‘the reasonable cost’ of furnishing such care. In other words, as the law now stands, fundamentally all the Social Security Administration can pay are the costs, with no allowance for profits or a return on the invested capital.” 112 Cong.Rec. 28220 (1966). Senator Long made a similar statement to the Senate, “As the proposed Medicare regulations stood [an investor] would only have been reimbursed for the actual costs of providing services with no specific return given on his investment.” 112 Cong. Rec. 27608 (1966). Floyd County, supra, at 572-74. This Court concludes, as did the district court for the Northern District of Georgia, id., at 575, that a payment for a return on equity capital is not within the scope of § 1395x(v)(l)(A). The plaintiffs have brought forward no cases which stand as authority for the proposition that a return on equity is a § 1395x(v)(l)(A) reasonable cost. Rather, they have relied on: (1) the PRRB’s decision, (2) general policy statements which assert that a policy of non-reimbursement for nonproprietary providers would violate the mandate of § 1395x(v)(l)(A) in that a heavier share of costs would be borne by non-Medicare patients, and (3) analogies to indirect costs which are reimbursed (i.e., straight line depreciation, 42 C.F.R. § 405.415, the 1966-1969 2% allowance, 20 C.F.R. § 405.428, interest on some loans, 42 C.F.R. § 405.[419], and return on net assets to proprietary hospitals, 42 C.F.R. § 405.429). None of these arguments addresses the critical question: did the Secretary misconstrue the statute in denying a return on equity? Given the legislative history quoted above, it is clear that not only did Congress not consider a return on equity when it passed the Medicare Act, it specifically viewed this item during the 1966 Hearings as an expense which did not fall within the purview of § 1395x(v)(l)(A). When the 2% allowance, some “bit” of which was a return on" }, { "docid": "8756748", "title": "", "text": "return on equity capital in § 1395x(v)(l)(B) is a reasonable cost within the meaning of § 1395x(v)(l)(A). However, this return on equity provision was added subsequent to the passage of the Medicare Act and it constitutes the sole exception to the basic Medicare principle that reimbursement be limited to those costs actually incurred in providing patient care services. It is clear from the purpose behind the return on equity provision (§ 1395x(v)(l)(B)), its legislative history, and the provision itself that the return on equity capital provision cannot be used by plaintiffs to support the position that reasonable costs under 42 U.S.C. § 1395x(v)(l)(A) was meant to include costs for investment. Id, 466 F.Supp. at 613. (In accord, Valley View, supra.) Therefore, the Secretary did not misinterpret § 1395x(v)(l)(A), nor do the regulations conflict with the statutory scheme. Although the plaintiffs’ policy arguments might have been convincing during the initial stages of legislative debate on the Medicare legislation, they were not accepted by Congress. It is beyond the province of the Court to do more than discern the will of Congress on this issue. A return on equity was not within the definition of reasonable cost originally. Since Congress has done nothing to change the statute in the 13 years since the demise of the 2% allowance, this Court cannot proclaim a return on equity capital to be a § 1395x(v)(l)(A) reasonable cost. (d) Does the Statutory or Regulatory Scheme Violate the Just Compensation Provision of the Fifth Amendment? The plaintiffs contend that if the statutory or regulatory schemes deny a return on equity to nonproprietary providers, they are constitutionally infirm. The hospitals urge that such provisions would violate the Fifth Amendment’s mandate that “private property ... [not] be taken for public use without just compensation.” The plaintiffs have presented the Court with no cases which support this position. They urge that being denied compensation for the opportunity cost of the assets used in furnishing care to Medicare patients is unjust compensation. If the United States does not pay them for the opportunity cost, the plaintiffs claim that the government is" }, { "docid": "8756746", "title": "", "text": "equity is a § 1395x(v)(l)(A) reasonable cost. Rather, they have relied on: (1) the PRRB’s decision, (2) general policy statements which assert that a policy of non-reimbursement for nonproprietary providers would violate the mandate of § 1395x(v)(l)(A) in that a heavier share of costs would be borne by non-Medicare patients, and (3) analogies to indirect costs which are reimbursed (i.e., straight line depreciation, 42 C.F.R. § 405.415, the 1966-1969 2% allowance, 20 C.F.R. § 405.428, interest on some loans, 42 C.F.R. § 405.[419], and return on net assets to proprietary hospitals, 42 C.F.R. § 405.429). None of these arguments addresses the critical question: did the Secretary misconstrue the statute in denying a return on equity? Given the legislative history quoted above, it is clear that not only did Congress not consider a return on equity when it passed the Medicare Act, it specifically viewed this item during the 1966 Hearings as an expense which did not fall within the purview of § 1395x(v)(l)(A). When the 2% allowance, some “bit” of which was a return on equity, was abandoned in 1969, the expense, as to nonproprietary providers, returned to its status as a nonreimbursable expense. In light of its legislative history, 42 U.S.C. § 1395x(v)(l)(A) cannot be stretched to cover this item of cost. Another district court which has considered the issue of whether a return on equity is a reasonable cost was recently upheld by the Court of Appeals for the District of Columbia Circuit. American Medical International, Inc. v. Secretary of Health, Education and Welfare, 466 F.Supp. 605 (D.D.C.1979), aff’d, 677 F.2d 118 (D.C. App.1981). In American Medical International the court discussed return on equity capital because the plaintiffs had analogized it to the stock maintenance costs for which they sought reimbursement. The district court stated: Plaintiffs argue that stock maintenance costs, though related to investment, should be reimbursed because Medicare allows proprietary providers a return on equity capital. 42 U.S.C. § 1395x(v)(l)(B). [Footnote omitted.] By allowing this payment, plaintiffs contend, the Medicare program expressly recognized that costs related to investment may be reimbursed. This argument assumes that the" }, { "docid": "23594619", "title": "", "text": "reimbursement scheme and the weight of recent court decisions specifically focusing on this question. Nowhere in the Medicare regulations is the word “cost” defined. It is used interchangeably with the words “allowance” and “expense” to mean something which is paid under the Medicare statute. Because corporate providers are paid a return on equity capital, the regulations and the courts often refer to this return as a “cost,” probably because a return on equity capital is included in the provider’s program reimbursement. However, a return on equity is a profit, not a cost, and it has its own independent basis in the Medicare Act. While reimbursable expenses paid by Medicare all fall under the “reasonable costs” provision, 42 U.S.C. § 1395x(v)(l)(A), a return on equity capital is provided for under section 1395x(v)(l)(B). Moreover, recent judicial decisions have carefully examined the legislative history of the return on equity capital provision and have demonstrated persuasively that a return on equity is not a “reasonable cost” as contemplated by the Medicare Act. See St. Francis Hospital Center v. Heckler, 714 F.2d 872 (7th Cir. 1983); Hospital Authority of Floyd County, Georgia v. Heckler, 707 F.2d 456 (11th Cir. 1983); Saline Community Hospital Association v. Schweiker, 554 F.Supp. 1133 (E.D. Mich.1983). We believe these decisions to be sound and do not believe that reiterating the courts’ analyses is necessary. Thus, because a return on equity in aircraft used for construction is not a “cost,” such as depreciation of the aircraft, it cannot be added to the “historical cost” of the facilities being constructed. Thus, we affirm the district court’s judgment on this issue. V. CONCLUSION. The plaintiffs have advanced many compelling arguments in support of their position on all four issues. Were we making the agency decision or devising Medicare regulations we might well adopt the outcome they urge upon us. We must be mindful, however, that the standard of our review requires that we uphold the Secretary’s decision if it is reasonably consistent with the statute and is not arbitrary or capricious. We are unconvinced that the Secretary’s determination is unreasonable or irrational. Thus," }, { "docid": "23384662", "title": "", "text": "shareholders’ investments. Their relationship to the provision of health care is too remote to allow them to be considered reasonable costs necessary to providing that care. See Gosman v. United States, 573 F.2d 31, 38 (Ct.C1.1978) (advertising expenditures are not reimbursable because they are “only tangentially or speculatively related to the actual care of Medicare beneficiaries”); Moody Nursing Home, Inc. v. Secretary of HEW, CCH Medicare and Medicaid Guide ¶ 28,607 at 10,110-12 (N.D.Ga.1977). Plaintiffs urge this Court to adopt the position that “stock maintenance costs are necessary to the corporate existence of AMI.” Memorandum in Support of Plaintiff’s Motion for Summary Judgment at 18 (August 28, 1978). This, however, misses the essence of the basis for reimbursement. While stock maintenance costs may be ordinary and necessary business expenditures of a corporate provider, this consideration is not controlling. See Doctor’s Hospital, Inc. v. Califano, 459 F.Supp. 201 at 212 (D.D.C. 1978). The costs must be necessary to the furnishing of medical care. As already noted, medical care can be furnished by non-corporate entities; therefore, the necessary costs of maintaining a corporate entity are not, ipso facto, necessary for the provision of medical care. Accordingly, stock maintenance costs are not reimbursable under the Medicare program. Plaintiffs argue that stock maintenance costs, though related to investment, should be reimbursed because Medicare allows proprietary providers a return on equity capital. 42 U.S.C. § 1395x(v)(l)(B). By allowing this payment, plaintiffs contend, the Medicare program expressly recognized that costs related to investment may be reimbursed. This argument assumes that the return on equity capital in § 1395x(v)(l)(B) is a reasonable cost within the meaning of § 1395x(v)(l)(A). However, this return on equity provision was added subsequent to the passage of the Medicare Act and it constitutes the sole exception to the basic Medicare principle that reimbursement be limited to those costs actually incurred in providing patient care services. It is clear from the purpose behind the return on equity provision, (§ 1395x(v)(l) (B)), its legislative history, and the provision itself that the return on equity capital provision cannot be used by plaintiffs to support the" }, { "docid": "23384663", "title": "", "text": "necessary costs of maintaining a corporate entity are not, ipso facto, necessary for the provision of medical care. Accordingly, stock maintenance costs are not reimbursable under the Medicare program. Plaintiffs argue that stock maintenance costs, though related to investment, should be reimbursed because Medicare allows proprietary providers a return on equity capital. 42 U.S.C. § 1395x(v)(l)(B). By allowing this payment, plaintiffs contend, the Medicare program expressly recognized that costs related to investment may be reimbursed. This argument assumes that the return on equity capital in § 1395x(v)(l)(B) is a reasonable cost within the meaning of § 1395x(v)(l)(A). However, this return on equity provision was added subsequent to the passage of the Medicare Act and it constitutes the sole exception to the basic Medicare principle that reimbursement be limited to those costs actually incurred in providing patient care services. It is clear from the purpose behind the return on equity provision, (§ 1395x(v)(l) (B)), its legislative history, and the provision itself that the return on equity capital provision cannot be used by plaintiffs to support the position that reasonable costs under 42 U.S.C. § 1395x(v)(l)(A) was meant to include costs for investment. Congress’s purpose in amending the Medicare Act in 1966 to include this provi sion was to encourage the expansion of post-hospital care facilities because of a perceived shortage of nursing home beds. 112 Cong.Rec. 27072 (October 20, 1966) . By allowing a return on equity capital, investments in facilities would increase. Because the purpose of the return on equity capital provisions was to allow providers an incentive, the amendment had to give providers a reimbursement which was not already available to them under the principle of reimbursement for reasonable costs of providing medical care. Otherwise, it would not have been an incentive. In fact, because the return on equity capital places a limit on the reimbursable amount, the purpose of the amendment — as an incentive to providers — would not be served if the same expenditures had been fully reimbursable as reasonable costs of providing medical care prior to the enactment of the amendment. Therefore, the only conclusion" }, { "docid": "1059165", "title": "", "text": "proprietary providers a one and one-half percent return on equity capital. Id. § 1395x(v)(l)(B). Added after the reasonable costs provision, section 1395x(v)(l)(B) is an exception to the statute’s guiding principle that reimbursement be limited to the costs actually incurred in providing services to Medicare patients. Sun Towers, 725 F.2d at 325. Baylor points to no provision in the statute nor definitive statement in the legislative history that Congress intended reasonable costs to include by necessity the two-percent return allowance for nonproprietary providers. Since we cannot meaningfully add to the thoughtful discussions that have preceded our consideration of the issue, we simply endorse the reasoning of those courts that have confirmed the substantive validity of the Secretary’s 1969 repeal. See St. Francis Hospital Center v. Heckler, 714 F.2d 872 (7th Cir.) (per curiam), cert. denied, — U.S. -, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984); Hospital Authority of Floyd County v. Heckler, 707 F.2d 456 (11th Cir.1983) (per curiam); see also Valley View Community Hospital v. United States, 679 F.2d 857, 230 Ct.Cl. 581 (1982); Washington Hospital Center, 581 F.Supp. at 199; St. John’s Hickey Memorial Hospital v. Heckler, Nos. 82-931-C, 83-92-C (S.D.Ind. June 7, 1984); Memorial Hospital of Carbondale v. Heckler, No. 82-4200 (S.D.Ill. May 8, 1984); Saline Community Hospital Association v. Schweiker, 554 F.Supp. 1133 (E.D.Mich.1983), rev’d on other grounds, 744 F.2d 517 (6th Cir.1984). The Medicare Act does not require HHS to reimburse nonproprietary providers for a return on their equity capital. Y. CONCLUSION We find that the Secretary’s 1969 repeal of the two-percent allowance for non-proprietary providers’ return on equity capital did not overstep the requirements of the APA. Since, in addition, we cannot say that the repeal was inconsistent with the terms or purpose of the Medicare Act, appellee Baylor is not entitled to its claimed reimbursement for a percentage of its equity capital. Having elsewhere affirmed the district court’s ruling on the validity of the Secretary’s computation of routine service costs, we do so again here. AFFIRMED IN PART and REVERSED IN PART. . Although the Secretary contends that the 1966 promulgation complied neither with" }, { "docid": "1059164", "title": "", "text": "2355, 2361, 72 L.Ed.2d 728 (1982); Batterton v. Francis, 432 U.S. 416, 423-25, 97 S.Ct. 2399, 2404-05, 53 L.Ed.2d 448 (1977). The Secretary’s regulations will be sustained as long as they are reasonably related to the purposes of the enabling legislation. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1973); Sun Towers, Inc. v. Heckler, 725 F.2d 315, 325 (5th Cir.), cert. denied, — U.S. -, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). Of course, this deference must nevertheless yield where our analysis produces a contrary meaning of the statute as revealed through its plain language, purpose, and history. Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). The thrust of Baylor’s argument is that the provision for reasonable cost allowance contained in 42 U.S.C. § 1395x(v)(l)(A) necessarily comprises a two-percent allowance for nonproprietary providers. While the language of the statute does not foreclose the hospital’s position, the statute’s structure and history does. The Medicare legislation already allows proprietary providers a one and one-half percent return on equity capital. Id. § 1395x(v)(l)(B). Added after the reasonable costs provision, section 1395x(v)(l)(B) is an exception to the statute’s guiding principle that reimbursement be limited to the costs actually incurred in providing services to Medicare patients. Sun Towers, 725 F.2d at 325. Baylor points to no provision in the statute nor definitive statement in the legislative history that Congress intended reasonable costs to include by necessity the two-percent return allowance for nonproprietary providers. Since we cannot meaningfully add to the thoughtful discussions that have preceded our consideration of the issue, we simply endorse the reasoning of those courts that have confirmed the substantive validity of the Secretary’s 1969 repeal. See St. Francis Hospital Center v. Heckler, 714 F.2d 872 (7th Cir.) (per curiam), cert. denied, — U.S. -, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984); Hospital Authority of Floyd County v. Heckler, 707 F.2d 456 (11th Cir.1983) (per curiam); see also Valley View Community Hospital v. United States, 679 F.2d 857, 230 Ct.Cl. 581 (1982); Washington" }, { "docid": "23594617", "title": "", "text": "amount to the historical cost of the completed facilities. If so, then HCA would be allowed to capitalize a current return on equity of $2,000 ($80,000 [net equity] X 10% [rate of return] X 25% [time used for construction activities]). HCA’s fiscal intermediaries would not allow such a return, whether capitalized or not. The plaintiffs argue, however, that the applicable Medicare statute and regulations authorize HCA to capitalize a return on equity in the aircraft during the time it was used for construction. They note that the “historical cost” of a facility (upon which a return on equity capital is based) is defined in 42 C.F.R. § 405.415(b) as “the cost incurred in acquiring the asset.” (Emphasis added.) Because, they contend, a return on equity capital is a “reasonable cost” under Medicare, this “cost” must be added to the “historical cost” of the buildings under construction. The Secretary contends, on the other hand, that the intermediaries properly disallowed the capitalization of such a return because return on equity capital is not a “cost.” Thus, the crux of this issue is whether a return on equity capital is a “cost” under the Medicare Act, In support of their position, the plaintiffs note that 42 C.F.R. § 405.402(c) refers to 11 costs such as depreciation, interest on borrowed funds, a return on equity capital (in the case of proprietary providers), and other costs.. . . ” (Emphasis added.) They also note that section 405.402(f) provides that “a return on equity capital of proprietary facilities is an allowable cost in profit-making organizations.” (Emphasis added.) Moreover, they also note that, for example, we said in Homan & Crimen, Inc. v. Harris, supra, at 1205, the Secretary’s regulations “allow reimbursement of indirect costs required for patient care, such as depreciation on buildings and equipment, interest incurred on loans, and a return on equity capital.” (Emphasis added.) But while the plaintiffs cite several instances where both the Medicare regulations and judicial decisions do refer to a return on equity as a “cost,” we believe they fail to take into account the legislative history of the Medicare" }, { "docid": "23473182", "title": "", "text": "individuals not so covered, and the costs with respect to individuals not so covered will not be borne by such insurance programs . Section 1395x(v)(l)(B) contains the additional requirement that [s]uch regulations in the case of extended care services furnished by proprietary facilities shall include provision for specific recognition of a reasonable return on equity capital, including necessary working capital, invested in the facility and used in the furnishing of such services . Relying on this statutory language, plaintiffs present the following argument: The economic reality of Medenco’s purchase, regardless of the specific legal form it took is that Medenco has invested $1 million in buying an ongoing proprietary hospital (plus an additional $1.5 million in capital improvements). The presumption underlying that investment was that it would yield a return from the sale of hospital services. Yet under the Secretary’s interpretation of the regulations, the actual and generally recognized indirect costs of operating the hospital — depreciation, interest and return on equity — costs which the investors expect to recover regardless of the nature of their investments, are not being fully shared by the Medicare program. The consequence of the Secretary’s position is that charges to non-Medicare patients will be increased so as to cover costs universally recognized as attributable to the hospital’s operation. The Secretary’s interpretation of the principles of reimbursement are thus in conflict with the statutory mandate that there is to be a reasonable return on equity capital (based on investment in a “facility” without regard to whether the investment was by provider or another) and that the costs of rendering care to Medicare patients are not to be shifted to non-Medicare patients. Because the agency’s interpretation is inconsistent with the congressional purpose, it is entitled to no deference and in fact must be rejected. Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). This is a strong argument which might well command our attention were we making the agency decision or devising the agency regulations. The standard of judicial review, however, requires that the agency decision be upheld if it is reasonably" }, { "docid": "8756747", "title": "", "text": "equity, was abandoned in 1969, the expense, as to nonproprietary providers, returned to its status as a nonreimbursable expense. In light of its legislative history, 42 U.S.C. § 1395x(v)(l)(A) cannot be stretched to cover this item of cost. Another district court which has considered the issue of whether a return on equity is a reasonable cost was recently upheld by the Court of Appeals for the District of Columbia Circuit. American Medical International, Inc. v. Secretary of Health, Education and Welfare, 466 F.Supp. 605 (D.D.C.1979), aff’d, 677 F.2d 118 (D.C. App.1981). In American Medical International the court discussed return on equity capital because the plaintiffs had analogized it to the stock maintenance costs for which they sought reimbursement. The district court stated: Plaintiffs argue that stock maintenance costs, though related to investment, should be reimbursed because Medicare allows proprietary providers a return on equity capital. 42 U.S.C. § 1395x(v)(l)(B). [Footnote omitted.] By allowing this payment, plaintiffs contend, the Medicare program expressly recognized that costs related to investment may be reimbursed. This argument assumes that the return on equity capital in § 1395x(v)(l)(B) is a reasonable cost within the meaning of § 1395x(v)(l)(A). However, this return on equity provision was added subsequent to the passage of the Medicare Act and it constitutes the sole exception to the basic Medicare principle that reimbursement be limited to those costs actually incurred in providing patient care services. It is clear from the purpose behind the return on equity provision (§ 1395x(v)(l)(B)), its legislative history, and the provision itself that the return on equity capital provision cannot be used by plaintiffs to support the position that reasonable costs under 42 U.S.C. § 1395x(v)(l)(A) was meant to include costs for investment. Id, 466 F.Supp. at 613. (In accord, Valley View, supra.) Therefore, the Secretary did not misinterpret § 1395x(v)(l)(A), nor do the regulations conflict with the statutory scheme. Although the plaintiffs’ policy arguments might have been convincing during the initial stages of legislative debate on the Medicare legislation, they were not accepted by Congress. It is beyond the province of the Court to do more than" }, { "docid": "8756726", "title": "", "text": "equity issue and affirmed the decision to deny reimbursement of bad debt and charity costs. The hospitals filed suit in district courts for judicial review of this decision.... (3) Return on Equity Capital The return on equity issue has been raised in several other courts. The hospitals’ basic contention is that they should be reimbursed by the Medicare program for a reasonable rate of return on their net assets used in the treatment of Medicare patients. The plaintiffs rest their argument on the following grounds: (A) the Deputy Administrator had no power to reverse the PRRB’s decision to grant these plaintiffs return on equity costs, therefore the PRRB’s decision is final, [not at issue on appeal] (B) great deference should be given to PRRB’s decision, (C) a return on equity is a “reasonable cost” of providing services under 42 U.S.C. § 1395x(v)(l)(A), (D) the denial of reimbursement for these costs constitutes a violation of the just compensation clause of the Fifth Amendment, and (E) since proprietary (for-profit) hospitals are given a return on net assets reimbursement, these plaintiffs, nonproprietary hospitals, are being denied their rights to equal protection. In order to understand the plaintiffs’ arguments, it is necessary to review some background and legislative history of the Medicare program. The terms “return on equity,” “return on equity capital,” “return on net assets,” and “imputed interest” are all used to describe the hospitals’ claims of entitlement to reimbursement for the opportunity cost of capital used in the treatment of Medicare patients. Under Part A of the Medicare Act, 42 U.S.C. §§ 1395c-1395Í-2, which provides hospital insurance benefits to qualified elderly and/or disabled recipients, hospitals are reimbursed for the “reasonable cost” of providing services to these recipients. The thrust of the plaintiffs’ position in this case is that a return on equity is a reasonable cost under the Act and should be reimbursed. Title 42 U.S.C. § 1395x(v)(l)(A) initially defines reasonable cost, for provider reimbursement purposes, as: (v)(l)(A) The reasonable cost of any services shall be the cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary in" } ]

[ { "docid": "22034233", "title": "", "text": "account the GAO’s concurrence in the executive determination, although the court does have the last word and should not shrink from exercise of its power when the conditions justify an injunction. Steinthal v. Sea-mans, 147 U.S.App.D.C. -, 455 F.2d 1289, decided this day. However, the present injunction, though issued prior to the GAO action on the bid protest, was not limited in duration so as to prevent such consideration. But it may not be supposed that a preliminary injunction is appropriate merely because the matter is pending before the GAO, or will be brought before the GAO at the court’s insistence, by analogy to the procedure followed in Brawn-er v. Shehyn, supra. Whether a preliminary injunction should be granted pendente lite, is a separate question from whether the primary jurisdiction doctrine should be invoked, though the issues are often inter-related. In view of the public interest in expeditious procurement a preliminary injunction cannot be justified unless the court makes a considered judgment of a probability of success on the merits. Likelihood of success is a requirement of an injunction even though the court’s probing and analysis may not be as comprehensive when its injunction is limited to the period required for a determination by the GAO on the protest. In the present case, the issuance of the preliminary injunction, which was not limited to the period of GAO consideration, was on a basis that we consider erroneous, and the preliminary injunction must be terminated. The administrative procurement decisions here attacked as illegal were consistent with the nation’s general policy favoring advertised competition, clearly expressed in the pertinent statutes and regulations. Judicial scrutiny of actions taken under the Armed Services Procurement Act should be oriented to the purpose of furthering open competitive bidding and contract award. A. G. Schoonmaker Co. v. Resor, 144 U.S.App.D.C. 250, 445 F.2d 726 (June 4, 1971). A court reviewing administrative action with an eye to assuring compliance with statutory mandates and policies should not take action that would avoid advertising in this area without a clear-cut statutory mandate. Steinthal v. Seamans, supra. In the particular case," } ]

[ { "docid": "1856897", "title": "", "text": "bid analysis. The clear import of Aireo is that plaintiffs are barred from raising their claim here. Alternatively, the court finds plaintiff’s claims on the merits to be without merit. Before embarking on an analysis of such claims, the court will set out the necessary standard of review of a federal contract procurement decision. The court’s review of the agency’s determination is limited. In M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289 (1971), the court faced a similar challenge to a government procurement award. There, the court limited its inquiry to a determination as to whether the agency had a reasonable basis for making such an award. Judge Leventhal enunciated a two-part inquiry: (1) Courts should not overturn any procurement determination unless the aggrieved bidder demonstrates that there was no rational basis for the agency’s decision; and (2) even in instances where such a determination is made, there is room for sound judicial discretion, in the presence of overriding public interest considerations, to refuse to entertain declaratory or injunctive actions in a preprocurement context. Id., 147 U.S.App.D.C. at 233, 455 F.2d at 1301. See also General Electric Co. v. Kreps, 456 F.Supp. 468, 470 (D.D.C.1978); Schiavone Construction Co. v. Samowitz, 451 F.Supp. 29 (S.D.N.Y.1978). The absence of such rational basis is demonstrated where “the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.” Kentron Hawaii, Ltd. v. Warner, 156 U.S.App.D.C. 274, 277, 480 F.2d 1166, 1169 (1973). In applying this standard, the court notes the agency’s interpretation of a statute it is empowered to enforce is entitled to deference. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. at 230, 455 F.2d at 1298. Such deference has special force “in an area as esoteric and complex as this.” Union Carbide Corp. v. Train, 73 F.R.D. 620, 624 (S.D.N.Y.1977). Finally, “[a] court should not set aside an agency action as arbitrary and capricious solely because the court would have handled the matter differently. There must be, instead, a showing that" }, { "docid": "978631", "title": "", "text": "harm if the injunctive relief is not granted, Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113 (1 Cir. 1968), and it must also show a probability of success on the merits. It is settled law that lack of an adequate remedy at law is a substantial element of irreparable harm. Celebrity, Inc. v. Trina, 264 F.2d 956 (1 Cir. 1959). In evaluating the first of these requirements on the record of this case, it is conceded that plaintiff does have an action for monetary damages in the United States Court of Claims. How ever, this remedy is more illusory than real because of prior decisions to the effect that the money damages recoverable against the United States are limited to bid preparation costs and may not include loss of profits that the bidder would have made had it been awarded the contract in question. Keco Industries, Inc. v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (1970); Heyer Products Co. v. United States, 140 F. Supp. 409, 135 Ct.Cl. 63 (1956). That this remedy in the Court of Claims is inadequate has been squarely ruled in General Electric Co. v. Seamans, 340 F. Supp. 636 (D.D.C.1972), where the court held that the action for damages in the Court of Claims was an inadequate remedy because it did not fully compensate the loss sustained by the frustrated bidder. Id. at 640. See, also, Pace Co., Div. of Ambac Industries, Inc. v. Department of the Army, 344 F.Supp. 787 (W.D.Tenn.1971), order vacated on other grounds (overriding national security interest) 453 F.2d 890 (1971), where the court issued a preliminary injunction on the ground that irreparable harm would result to a frustrated bidder if the Government was not enjoined. Id. at 790. Accordingly, I rule that plaintiff has demonstrated the likelihood that it will sustain irreparable injury if the injunction does not issue. In considering the remainder of the burden which plaintiff must carry in order to obtain a preliminary injunction, i. e., probability of success on the merits, the court is aware that the balance of hardships on the" }, { "docid": "22785967", "title": "", "text": "related to the amount of discretion entrusted to the procurement officials by applicable statutes and regulations. Continental Business Enterprises v. United States, supra, 452 F.2d at 1021, 196 Ct.Cl. at 637 (1971); Keco Industries, Inc. v. United States, supra, 428 F.2d at 1240, 192 Ct.Cl. at 784. The fourth is that proven violation of pertinent statutes or regulations can, but need not necessarily, be a ground for recovery. Cf. Keco Industries I, supra, 428 F.2d at 1240, 192 Ct.Cl. at 784. The application of these four general principles may well depend on (1) the type of error or dereliction committed by the Government, and (2) whether the error or dereliction occurred with respect to the claimant’s own bid or that of a competitor. A. Because of the complexity of the formal advertising process, it is best to separate out the various steps and to treat first with errors charged with respect to the plaintiff’s own bid. A disappointed bidder may, for instance, allege that his own bid was improperly read or evaluated as to the “price and other factors” criterion. As we have said, it is enough for recovery if an adequate showing is made that the Government acted in bad faith, e. g., by predetermining the awardee or by harboring a prejudice against the plaintiff. Heyer Products Co. v. United States, supra, 140 F.Supp. at 413-414, 135 Ct.Cl. at 69-71 (1956). And suits for injunction in other courts, dealing with this matter, have held that relief should be granted when the Government awards a contract without any reasonable basis for its actions. M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289, 1301 (1971); Rudolph F. Matzer & Assoc., Inc. v. Warner, 348 F.Supp. 991, 994-995 (M.D.Fla.1972). This is the standard we accepted in Continental Business Enterprises, supra. Although based on external facts and circumstances rather than a showing of animosity toward plaintiff or favoritism for a competitor, this principle is not far removed from the bad faith test; courts often equate wholly unreasonable action with conduct motivated by subjective bad faith. Cf. Rudolph F. Matzer &" }, { "docid": "16492043", "title": "", "text": "an appropriate remedy. As noted by the United States Court of Appeals for the District of Columbia in the leading case of M. Steinthal & Co. v. Seamans, supra, the role of a district court in reviewing agency procurement decisions is a limited one. “[E]ven in instances [where plaintiff meets its burden] * * *, there is room for sound judicial discretion, in the presence of overriding public interest considerations, to refuse to entertain declaratory or injunctive action in a pre-procurement context.” Id., 147 U.S.App.D.C. at 233, 455 F.2d at 1301. Such public interest considerations include the interest in the smooth and expeditious completion of the procurement process and the need for essential government services such as a procurement of military hardware. Id., 147 U.S.App.D.C. at 234, 455 F.2d at 1302. Moreover, a number of courts have denied declaratory and/or injunctive relief for the reason that an unsuccessful bidder has the availability of a damages remedy in the United States Court of Claims. See, Cincinnati Electronics Corp. v. Kleppe, 509 F.2d 1080 (6th Cir. 1975); Wheelabrator Corp. v. Chafee, 147 U.S.App. D.C. 238, 455 F.2d 1306 (1971); M. Steinthal & Co. v. Seamans, supra. However, this remedy does not necessarily provide adequate compensation for a bidder inasmuch as it provides damages only to the extent of bid preparation costs. Keco Industries, Inc. v. United States, 428 F.2d 1333, 192 Ct.Cl. 773 (1970), and Heyer Products Company v. United States, 140 F.Supp. 409, 135 Ct.Cl. 63 (1956). Thus, while in the ordinary circumstance, this remedy may be sufficient to protect the integrity of the procurement process, I find it is not so in cases such as the action herein. In the instant action the public’s interest in insuring that government contracts are awarded in a fair and equitable manner conflicts with its equally strong interest in avoiding lengthy disruptions in the contracting and procurement process. See, Union Carbide Corp. v. Train, 73 F.R.D. 620 (S.D.N.Y.1977). The defendants assert that the latter interests are entitled to greater deference where, as here, challenge is made after the contract has been entered into or" }, { "docid": "22645574", "title": "", "text": "than ordinary print. The judicial discretion to decline to entertain actions seeking declaratory or injunctive relief, on the grounds of equitable considerations or of concepts of the “public interest,” may also be involved. The availability of a damages remedy in the Court of Claims, which in many cases will compensate the frustrated bidder’s realized financial losses (i. e., the bid preparation costs) result-^ ing from the illegal agency action, provides a sound equitable basis for the exercise of this discretion in considering whether to entertain a suit for injunctive relief. We are not referring solely to the public interest in the smooth flow arid expeditious completion of the procurement process, but more specifically to the additional public interest’ consideration that obtains when what is involved is an item like parachutes and a short delivery schedule. This kind. of urgent matter should not arise often, but when it does arise there is discretion in the District Court to decline to consider the prayer for injunctive or declaratory relief, and to leave the bidder solely to his damages remedy. To avoid any confusion, it is not being stated here that the damages available to the disappointed bidder, which do not comprehend anticipated profit, are automatically an “adequate” legal remedy as to warrant dismissal for want of equity of every injunction action regardless of the strength of plaintiff’s claim on the merits. Gould Inc. and Eltra Corp. v. Cha fee, 146 U.S.App.D.C. 206, 450 F.2d 667 (decided June 30, 1971); John Reiner & Co. v. United States, 325 F.2d 438, 163 Ct.Cl. 381 (1963). But as appears from settled precedent, supra note 41, there is discretion under doctrines of public interest to withhold relief even assuming-the private bidder cannot be made completely whole in damages. It would be intolerable for any frustrated bidder “to render uncertain, for a prolonged period of time government contracts which are vital to the! functions performed by the sovereign.”! Blackhawk Heating and Plumbing Co. v. Driver, supra note 33, 140 U.S.App.D.C. 31, 433 F.2d at 1141. The frivolous lawsuit can, of course, be terminated swiftly by the summary" }, { "docid": "1573316", "title": "", "text": "harm may accrue to the government and the public when agencies are unable to make necessary procurements without undue delay. Although finding merit in the claims of disappointed bidders, they have struck the balance of equities in favor of the government’s interests in the smooth and efficient functioning of the procurement process at the expense of the interests of the unsuccessful bidder in the integrity of the bidding process and equal access to the procurement dollar (and of the public in fairness and competitive bidding). See Simpson Elec. Co. v. Seamans, 317 F.Supp. 684 (D.D.C.1970). See also Wheelabrator Corp. v. Chafee, 455 F.2d 1306; M. Steinthal & Co. v. Seamans, 455 F.2d 1289; A.G. Schoonmaker Co. v. Resor, 445 F.2d 726 (D.C.Cir.1971); Blackhawk Heating & Plumbing Co. v. Driver, 433 F.2d 1137 (D.C.Cir.1970); Lombard Corp. v. Resor, 321 F.Supp. 687 (D.D.C.1970). These courts have also taken into account the availability of a damage remedy in the Court of Claims for bid preparation losses re-suiting from illegal agency action. See M. Steinthal & Co. v. Seamans, 455 F.2d at 1302-03, And partial performance of a contract has been considered to be a substantial factor in the denial of injunctions to unsuccessful bidders. Keco Indus, v. Laird, 318 F.Supp. 1361, 1364 (D.D.C.1970). . We are mindful that Gull urges that injunctive relief is the only remedy that will compensate it for the losses it allegedly has sustained. Brief for Appellant at 31. We believe, however, that even if the claim for injunctive relief is extinguished by mootness, Gull may retain a viable claim for damages to the extent of its bid preparation costs, Robert F. Simmons & Assoc, v. United States, 360 F.2d 962, 175 Ct.Cl. 510 (1966); Heyer Prods. Co. v. United States, 140 F.Supp. 409, 413-14, 135 Ct.Cl. 63 (1956), damages clearly not nominal. If these costs are less than $10,000, Gull can seek recovery in the district court, 28 U.S.C. § 1346(a)(2); otherwise, its remedy lies in the Court of Claims. See Keco Indus, v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (1970). Because the claim for damages" }, { "docid": "16492044", "title": "", "text": "Wheelabrator Corp. v. Chafee, 147 U.S.App. D.C. 238, 455 F.2d 1306 (1971); M. Steinthal & Co. v. Seamans, supra. However, this remedy does not necessarily provide adequate compensation for a bidder inasmuch as it provides damages only to the extent of bid preparation costs. Keco Industries, Inc. v. United States, 428 F.2d 1333, 192 Ct.Cl. 773 (1970), and Heyer Products Company v. United States, 140 F.Supp. 409, 135 Ct.Cl. 63 (1956). Thus, while in the ordinary circumstance, this remedy may be sufficient to protect the integrity of the procurement process, I find it is not so in cases such as the action herein. In the instant action the public’s interest in insuring that government contracts are awarded in a fair and equitable manner conflicts with its equally strong interest in avoiding lengthy disruptions in the contracting and procurement process. See, Union Carbide Corp. v. Train, 73 F.R.D. 620 (S.D.N.Y.1977). The defendants assert that the latter interests are entitled to greater deference where, as here, challenge is made after the contract has been entered into or contracting work begun. See, Wheelabrator Corporation v. Chafee, supra, 147 U.S. App.D.C. at 246 — 47, at 1314-15, n. 11. However, defendants ignore yet another public interest, that of protecting the integrity of the judicial process and insuring the adherence of government agencies to feder al court orders. As noted previously in this court’s findings of fact, there is overwhelming evidence that the VA and Hamberger were expecting the lawsuit and an injunction and were collaborating clandestinely and with undue speed in securing bonds and putting forth the letter of acceptance. As there set forth, plaintiff on November 9th notified the VA of its intention to seek a temporary restraining order enjoining the award of the contract to Hamberger. In order to circumvent such order, issued by this court on the 13th and effective on the 14th, the VA provided bond forms, prepared a letter of acceptance and assigned a contract number to project on the 11th, a Saturday, apprised Hamberger of the developing scenario and encouraged it to proceed with haste, which Hamberger did" }, { "docid": "23685499", "title": "", "text": "statute. 318 F.Supp. 1167 (N.D.Ala. 1970). The Air Force, because it determined that the housing was urgently needed, complied with the injunction and awarded the contract to the plaintiff. On appeal, this Court determined that the Air Force’s original determination was reasonable, and that the injunction had been erroneously granted. Subsequently, the Court of Claims ordered the Government to pay damages to the original successful bidder flowing from the Air Force’s obedience to the district court’s order. 467 F.2d 931, 199 Ct.Cl.- 515 (1972). As a consequence of this litigation, the Government was in effect required to pay two different bidders for the same work. . Ray Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696 (5th Cir. 1973). . M. Steinthal and Co., supra, 455 F.2d at 1302. The damages available in the Court of Claims are normally limited to those costs associated with preparation of the losing bid. See Keco Industries, Inc. v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (1970); Robert F. Simmons and Associates v. United States, 360 F.2d 962, 175 Ct.Cl. 510 (1966); Heyer Products Co. v. United States, 140 F.Supp. 409, 135 Ct.Cl. 63 (1956) and 177 F.Supp. 251, 147 Ct.Cl. 256 (1959). . Wheelabrator Corp. v. Chafee, 147 U.S. App.D.C. 238, 455 F.2d 1306, 1313 (1971). See 4 C.F.R. Part 20 for the bid protest procedures issued by the Comptroller General, and see generally, Cibinic and Lasken, The Comptroller General and Government Contracts, 38 Geo.Was.L.Rev. 349 (1970). . As the D.C. Circuit specifically noted in M. Steinthal and Co., supra, 455 F.2d at 1301, the federal courts must pay particular respect to what might be fairly called the “common law of government procurement” — the body of rulings determinations emanating from executive officials and the uniquely situated appeals determinations of the Comptroller General and quasi-judicial boards such as the boards of contract appeals in many of the various procurement agencies. Thus the deference normally owed an agency’s interpretation of its own authorizing statutes and regulations may in some cases induce a federal court in its sound equity discretion to withhold issuance of" }, { "docid": "958637", "title": "", "text": "a sole-source basis from LGC and, perhaps even more erroneously, to omit those steps that might have facilitated competitive follow-on procurements. These decisions and omissions appear to have occurred in “clear and prejudicial violation of applicable statutes [and] regulations.” Kentron Hawaii v. Warner, supra, 156 U.S.App.D.C. at 277,480 F.2d at 1169. There is a substantial likelihood that plaintiff will therefore prevail on the merits of its claim that defendant’s preclusion of competitive negotiation for the entire C-130 SLEP undertaking is insupportable under section 2304(g) and DAR ¶3-101^). The Court is quite likely to find, as did the Comptroller-General in numerous protest cases, that a procurement officer’s belief that one source has particular technical and administrative advantages over any other source does not justify a decision under section 2304(g) to contract with that firm on a sole-source basis. There is also a strong probability that defendant will be found to have repeatedly neglected the obligations of DAR ¶ 3-101(d) and the Order of March 4,1980. See Order of March 4, 1980 ¶5; DAR 13-101(d). The Appropriateness of Injunctive Relief 11. Proof of a substantial likelihood of success on the merits opens the remedial inquiry required by Holiday Tours, and, more particularly in the procurement setting, by M. Steinthal & Co. v. Seamans, supra. As the Court of Appeals established in Steinthal, once it appears a plaintiff will prevail, the Court still must be satisfied that affirmative relief would be beneficial to the public interest. [There are] two interrelated principles which we deem of especial importance for judicial consideration of emergency challenges to determinations of procurement officials: (1) courts should not overturn any procurement determination unless the aggrieved bidder demonstrates that there was no rational basis for the agency’s decision; and (2) even in instances where such a determination is made, there is room for sound judicial discretion, in the presence of overriding public interest considerations, to refuse to entertain declaratory or injunctive actions in a pre-procurement context. 147 U.S.App.D.C. at 233, 455 F.2d at 1301 (emphasis added). Such a formulation closely corresponds with the traditional balance-of-the-equities analysis. See, e.g., Washington Area" }, { "docid": "15439247", "title": "", "text": "declaratory relief or an action for damages. A final consideration militating against present injunctive relief is that even if it is ultimately concluded that the EPA determination was without rational basis, it is possible that injunctive relief might be denied. As stated by the Seamans court: “even in instances where [a court concludes that there is no rational basis for the agency’s decision], there is room for sound judicial discretion, in the presence of overriding public interest considerations to refuse to entertain declaratory or injunctive actions in a pre-procurement context.” 455 F.2d at 1301. The public’s interest in ensuring that government-funded contracts are awarded in a fair and equitable manner conflicts with the equally strong public interest in avoiding lengthy disruptions in the contracting and procurement process. In this case the lattq¡r interest is augmented by the public interest in the speedy improvement in the Grantee’s sewage treatment plant. This consideration is the principle focus of the Federal Water Pollution Control Act grant program out of which this controversy arises. Seamans states that such countervailing interests may weigh against in-junctive relief in a pre-procurement context. They are entitled to increased deference, where, as here, the challenge is made after a contract has been entered or construction begun. See, e.g., Wheelabrator Corp. v. Chaffee, supra, 455 F.2d at 1314-15 n. 11; Curtiss-Wright Corp. v. McLucas, 364 F.Supp. 750, 774 (D.N.J.1973); William F. Wilke, Inc. v. Department of the Army, 357 F.Supp. 988, 994-95 (D.Md.1973). UC’s argument that preliminary or final injunctive relief would not entail extra costs or undue delay is largely conjectural. (Marple Affidavit, December 8, 1976 at 6-7). Its stated ability to provide a PSA system at the original bidding price without delaying the project, id., is unpersuasive because it ignores the costs involved in switching plans in mid-stream, and is in any event irrelevant since this is not the relief it seeks. Even if the injunction sought were to issue, there is serious question whether UC’s product would necessarily be used. For the foregoing reasons, UC’s motion for preliminary injunction is denied. Action on the cross-motions for summary" }, { "docid": "763601", "title": "", "text": "non-set-aside portion it would thereafter be awarded the contract for the remainder, such a result was not certain. The ultimate decision on whether to grant an award of this contract to Cincinnati or some other firm remained a matter in the discretion of the government. If it is finally determined that the contract was illegally awarded to Sentinel, Cincinnati has no right to have the contract awarded to it. See Scanwell Laboratories, Inc. v. Shaffer, supra, 424 F.2d at 864. The only recognized loss which Cincinnati or any other unsuccessful bidder sustains is the cost of preparation of bids or proposals. These costs may be recovered in an action in the Court of Claims. M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289, 1302 (1971); Keco Industries, Inc. v. United States, 428 F.2d 1233, 1240, 192 Ct.Cl. 773 (1970); Robert F. Simmons and Associates v. United States, 360 F.2d 962, 964, 175 Ct.Cl. 510 (1966); Heyer Products Co. v. United States, 177 F.Supp. 251, 252, 147 Ct.Cl. 256 (1959). Thus there is an adequate remedy available, and this is the second reason for denying an injunction. Finally, in every case such as this where injunctive relief is sought a court must balance the public interest in having a government procurement process which can be administered without disruptive court-ordered restraints against the interests of the party seeking the injunction. See M. Steinthal & Co. v. Seamans, supra, 455 F.2d at 1301. Compare Wilke v. United States, supra. Though an unsuccessful bidder must have suffered an “injury in fact” to have standing to bring an action for judicial review of an award, the “essential thrust” of its claims “is to satisfy the public interest in having agencies follow the regulations which control government contracting.” Scanwell, supra, 424 F.2d at 864. We believe the public interest is best served by issuing a declaratory judgment concerning the actions of the contracting officer in this case, but denying injunctive relief. The judgment in No. 74-1170 is reversed for further proceedings as indicated herein. . This Act deals generally with procurement by the" }, { "docid": "763600", "title": "", "text": "in position to file a protest under § 1.703(b)(1). Having thus received a timely “size” protest, the contracting officer was required to forward it to SBA and withhold the awarding of the set-aside contract pending disposition thereof. While the district court based its holding on the conclusion that the protest was not timely, it mentioned the possibility that the protest might have been considered deficient for other reasons, but made no finding or conclusions with respect to these matters, and we do not consider them. Though it is necessary to reverse the judgment dismissing the defendant Callaway, consideration must be given to the question of what relief should be granted Cincinnati. The record in this case does not support the issuance of an injunction as requested in the complaint. This is so for a number of reasons. In the first place, Cincinnati has not shown that it has suffered or will suffer irreparable loss or injury. Although Cincinnati bid on the entire procurement on the assumption that if it were the successful bidder on the non-set-aside portion it would thereafter be awarded the contract for the remainder, such a result was not certain. The ultimate decision on whether to grant an award of this contract to Cincinnati or some other firm remained a matter in the discretion of the government. If it is finally determined that the contract was illegally awarded to Sentinel, Cincinnati has no right to have the contract awarded to it. See Scanwell Laboratories, Inc. v. Shaffer, supra, 424 F.2d at 864. The only recognized loss which Cincinnati or any other unsuccessful bidder sustains is the cost of preparation of bids or proposals. These costs may be recovered in an action in the Court of Claims. M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289, 1302 (1971); Keco Industries, Inc. v. United States, 428 F.2d 1233, 1240, 192 Ct.Cl. 773 (1970); Robert F. Simmons and Associates v. United States, 360 F.2d 962, 964, 175 Ct.Cl. 510 (1966); Heyer Products Co. v. United States, 177 F.Supp. 251, 252, 147 Ct.Cl. 256 (1959). Thus there is" }, { "docid": "16492042", "title": "", "text": "evidence shows that the plaintiff’s attorney sent a written protest of the award to the VA November 8,1978 prior to the purported awarding of the contract to Hamberger. While the VA informed plaintiff on November 9th that it considered the protest “basically bunk” and that the contract would be awarded to Hamberger, neither written notice of the VA’s decision to deny the protest nor of its intention to proceed with the awarding of the contract was provided. In addition, the perfunctory and offhand manner in which the protest was denied is inconsistent with the general tenor of section 1-2.407-8. Thus, I find that the VA did not adhere to the procurement procedure required by law. Written notice of (1) its denial of the protest or (2) its intention to proceed with the awarding of the contract prior to a decision on the protest should have been provided to the plaintiff. Having found that the plaintiff has met his burden of showing a clear and prejudicial violation of the procurement procedure, this court must accordingly fashion an appropriate remedy. As noted by the United States Court of Appeals for the District of Columbia in the leading case of M. Steinthal & Co. v. Seamans, supra, the role of a district court in reviewing agency procurement decisions is a limited one. “[E]ven in instances [where plaintiff meets its burden] * * *, there is room for sound judicial discretion, in the presence of overriding public interest considerations, to refuse to entertain declaratory or injunctive action in a pre-procurement context.” Id., 147 U.S.App.D.C. at 233, 455 F.2d at 1301. Such public interest considerations include the interest in the smooth and expeditious completion of the procurement process and the need for essential government services such as a procurement of military hardware. Id., 147 U.S.App.D.C. at 234, 455 F.2d at 1302. Moreover, a number of courts have denied declaratory and/or injunctive relief for the reason that an unsuccessful bidder has the availability of a damages remedy in the United States Court of Claims. See, Cincinnati Electronics Corp. v. Kleppe, 509 F.2d 1080 (6th Cir. 1975);" }, { "docid": "23685498", "title": "", "text": "widely condemned as an intolerable business handicap. It is, as both Congress and the courts have always recognized, essential to the even and expeditious functioning of Government that the administration of the purchasing machinery be unhampered.” 310 U.S. at 130, 60 S.Ct. at 878. See also, Lind v. Staats, 289 F.Supp. 182, 186 (N.D.Cal.1968) for a strong statement of the possible harm resulting from interference with essential Government procurement. See also discussion in M. Steinthal and Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289, 1300 (1971). . Our decision in Allen M. Campbell Co. v. Lloyd Wood Construction Co., 446 F.2d 261 (5th Cir. 1971) demonstrates the type of inefficiency which may be occasioned by judicial review of procurement decisions. In that case the district court originally entered an injunction restraining the Air Force from entering into a contract for the construction of housing when the plaintiff contended that the bidder to whom the contract was to be awarded was ineligible because it was not a “small business\" within the meaning of the relevant statute. 318 F.Supp. 1167 (N.D.Ala. 1970). The Air Force, because it determined that the housing was urgently needed, complied with the injunction and awarded the contract to the plaintiff. On appeal, this Court determined that the Air Force’s original determination was reasonable, and that the injunction had been erroneously granted. Subsequently, the Court of Claims ordered the Government to pay damages to the original successful bidder flowing from the Air Force’s obedience to the district court’s order. 467 F.2d 931, 199 Ct.Cl.- 515 (1972). As a consequence of this litigation, the Government was in effect required to pay two different bidders for the same work. . Ray Baillie Trash Hauling, Inc. v. Kleppe, 477 F.2d 696 (5th Cir. 1973). . M. Steinthal and Co., supra, 455 F.2d at 1302. The damages available in the Court of Claims are normally limited to those costs associated with preparation of the losing bid. See Keco Industries, Inc. v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (1970); Robert F. Simmons and Associates v. United States, 360 F.2d 962," }, { "docid": "1259950", "title": "", "text": "had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.” Kentron Hawaii, Ltd. v. Warner, 156 U.S.App.D.C. 274, 277, 480 F.2d 1166, 1169 (D.C. Cir. 1973) (footnote omitted); See also, M. Steinthal & Co. v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289 (D.C. Cir. 1971). In conducting its review, the Court’s inquiry: must fully take into account the discretion that is typically accorded officials in the procurement agencies by statutes and regulations. Such discretion extends not only to the evaluation of bids, submitted in response to a solicitation but also to determination by the agency with respect to the application of technical, and often esoteric, regulations to the complicated circumstances of individual procurements. M. Steinthal & Co., supra 147 U.S.App.D.C. at 233, 455 F.2d at 1301. Furthermore, in the field of government procurement “the courts must be sedulous to heed the admonition that their authority to vacate and enjoin action that is illegal must be exercised with restraint less the courts fall into the error of supposing that they may revise ‘action simply because [they] happen to think it ill-considered, or to represent the less appealing alternative solution available.’ ” Id. 147 U.S.App.D.C. at 230-31, 455 F.2d at 1298-99 (citation omitted). Finally, even in instances where the aggrieved bidder demonstrates that there was no rational basis for the agency’s decision, a reviewing court, in the exercise of sound judicial discretion and in light of overriding public interest considerations, may properly refuse to grant declaratory or injunctive relief. Id. 147 U.S.App.D.C. at 233, 455 F.2d at 1301. II. CONSIDERATIONS OF NATIONAL DEFENSE. Defendants contend that considerations of national defense preclude the relief sought by plaintiffs in this action. The Navy has consistently argued that timely completion of the T-ARC 7 is vital to the defense interests of the United States. This “overriding public interest consideration,” the defendants contend, by itself compels 1) upholding the award of the T-ARC 7 contract, and 2) granting summary judgment in defendants’ favor. The Court agrees with defendants’ first contention but disagrees with their second. The" }, { "docid": "17728520", "title": "", "text": "was well-settled that the monetary damages suffered by a disappointed bidder were limited to its bid proposal costs. Excavation Constr., Inc. v. United States, 204 Ct.Cl. 299, 301-02, 494 F.2d 1289, 1290 (1974) (citing Keco, 192 Ct.Cl. at 784, 428 F.2d at 1240; Heyer Prod. Co. v. United States, 135 Ct.Cl. 63, 69, 140 F.Supp. 409, 412 (1956)). Judicial precedent has long held that a plaintiff is precluded from recovering lost profits on the ground that the contract for which plaintiff bid never actually came into existence. See Keco, 192 Ct.Cl. at 784-85, 428 F.2d at 1240; Heyer, 135 Ct.Cl. at 69, 140 F.Supp. at 412. As for the district courts, bid protest cases were governed by the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (2000). The APA does not allow for the recovery of lost profits even in post-award cases. Id. § 702; Cincinnati Elec. Corp. v. Kleppe, 509 F.2d 1080, 1089 (6th Cir.1975) (“The only recognized loss which [plaintiff] or any other unsuccessful bidder sustains is the cost of preparation of bids or proposals. These costs may be recovered in an action in the Court of Claims.”). Thus, the issue that the parties now present is not only whether Congress intended to repeal the implied-in-fact contract theory for bid protests when it repealed former seetion 1491(a)(3) and enacted section 1491(b)(1), but also, if no repeal was effected, whether Congress intended to enlarge the scope of recovery under the implied-in-fact contract theory to allow a plaintiff to recover lost profits. It is now established that Congress expressly intended the ADRA to confer the Court of Federal Claims with the same power in bid protest actions that the district courts exercised under the APA. Emery, 264 F.3d at 1079-80; Impresa, 238 F.3d at 1332. As the district courts could not award lost profits in pre— or post-award bid protest cases, it is impossible to wrest from Congress’s actions an intent to allow the Court of Federal Claims to grant a greater remedy in post-award cases by allowing for the recovery of lost profits. Cf. Comm’r v. Brown, 380 U.S. 563," }, { "docid": "23197647", "title": "", "text": "set forth by a quotation: “The public interest in preventing the granting of contracts through arbitrary or capricious action can properly be vindicated through a suit brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a ‘private attorney general’.” 424 F.2d at 864. Thus, a bidder who has suffered sufficient injury in fact to meet the case or controversy test of Article III may, in pursuit of a vindication of that injury, assert not only his own rights but those of the public. The District of Columbia Circuit still follows Scanwell. See Constructores Civiles de Centroamerica v. Hannah, 148 U.S.App.D.C. 159, 459 F.2d 1183 (1972); Wheelabrator Corp. v. Chafee, 147 U.S.App.D.C. 238, 455 F.2d 1306 (1971); M. Steinthal & Co. v. Sea- mans, 147 U.S.App.D.C. 221, 455 F.2d 1289 (1971); Ballerina Pen Co. v. Kunzig, 140 U.S.App.D.C. 98, 433 F.2d 1204 (1970), cert. denied, 401 U.S. 950, 91 S.Ct. 1186, 28 L.Ed.2d 234 (1971); Blackhawk Heating & Plumbing Co. v. Driver, 140 U.S.App.D.C. 31, 433 F.2d 1137 (1970). Merriam meets the standing test adopted by the District of Columbia Circuit. Assuming for the moment, as the Government contends, that both the Independent Offices Appropriations Act and the Public Buildings Amendments of 1972 were designed to protect no zone of interest within which he falls, Merriam may nevertheless assert the public interest provided he has suffered injury in fact. In addition to the destruction of a present and a future potentially profitable relationship with the Government, an injury which the district court acknowledged, Merriam also suffered loss of the costs incurred in preparing and submitting his proposal. Such an injury has been recognized as compensable by the Court of Claims when an unsuccessful bidder seeks judicial review of an allegedly illegal award in that court. Keco Industries, Inc. v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (1970). Bid preparation costs are not specifically alleged here, although under 28 U.S.C. § 1346(a)(2) the district court would have jurisdiction to consider such claims" }, { "docid": "1573315", "title": "", "text": "Textron Div. v. Adams, 493 F.Supp. 824, 829 (D.D.C.1980). . Indeed, Gull’s many attempts to receive administrative relief served to put the government on notice that it was not sleeping on its rights. See Hurst v. United States Postal Serv., 586 F.2d 1197, 1200 (8th Cir.1978); Cady v. Morton, 527 F.2d 786, 792 (9th Cir.1975); Concerned About Trident v. Schlesinger, 400 F.Supp. 454, 479-80 (D.D.C.1975). See also Etelson v. Office of Personnel Management, 684 F.2d 918, 924 n.8 (D.C.Cir.1982) (government attorney challenging method used by government in evaluating candidates for administrative law judge positions had not sat on his rights even though he waited nine years before filing suit since he had been pursuing administrative and legislative remedies during those years). . Post-Scanwell courts have considered several factors in exercising their discretion to issue or refuse to issue an injunction. See Note, Judicial Review and Remedies for the Unsuccessful Bidder on Federal Government Contracts, 47 N.Y.U.L.Rev. 496, 513-17 (1972). They have looked carefully at the interests to be affected by injunctive relief, recognizing that substantial harm may accrue to the government and the public when agencies are unable to make necessary procurements without undue delay. Although finding merit in the claims of disappointed bidders, they have struck the balance of equities in favor of the government’s interests in the smooth and efficient functioning of the procurement process at the expense of the interests of the unsuccessful bidder in the integrity of the bidding process and equal access to the procurement dollar (and of the public in fairness and competitive bidding). See Simpson Elec. Co. v. Seamans, 317 F.Supp. 684 (D.D.C.1970). See also Wheelabrator Corp. v. Chafee, 455 F.2d 1306; M. Steinthal & Co. v. Seamans, 455 F.2d 1289; A.G. Schoonmaker Co. v. Resor, 445 F.2d 726 (D.C.Cir.1971); Blackhawk Heating & Plumbing Co. v. Driver, 433 F.2d 1137 (D.C.Cir.1970); Lombard Corp. v. Resor, 321 F.Supp. 687 (D.D.C.1970). These courts have also taken into account the availability of a damage remedy in the Court of Claims for bid preparation losses re-suiting from illegal agency action. See M. Steinthal & Co. v. Seamans," }, { "docid": "23685500", "title": "", "text": "175 Ct.Cl. 510 (1966); Heyer Products Co. v. United States, 140 F.Supp. 409, 135 Ct.Cl. 63 (1956) and 177 F.Supp. 251, 147 Ct.Cl. 256 (1959). . Wheelabrator Corp. v. Chafee, 147 U.S. App.D.C. 238, 455 F.2d 1306, 1313 (1971). See 4 C.F.R. Part 20 for the bid protest procedures issued by the Comptroller General, and see generally, Cibinic and Lasken, The Comptroller General and Government Contracts, 38 Geo.Was.L.Rev. 349 (1970). . As the D.C. Circuit specifically noted in M. Steinthal and Co., supra, 455 F.2d at 1301, the federal courts must pay particular respect to what might be fairly called the “common law of government procurement” — the body of rulings determinations emanating from executive officials and the uniquely situated appeals determinations of the Comptroller General and quasi-judicial boards such as the boards of contract appeals in many of the various procurement agencies. Thus the deference normally owed an agency’s interpretation of its own authorizing statutes and regulations may in some cases induce a federal court in its sound equity discretion to withhold issuance of the preliminary injunction if the agency can demonstrate the likelihood that its procurement decisions followed accepted agency practice. . Kentron Hawaii, Ltd. v. Warner, 156 U.S. App.D.C. 274, 480 F.2d 1166 (1973); M. Steinthal and Co., supra, 455 F.2d at 1301; Continental Business Enterprises, Inc. v. United States, 452 F.2d 1016, 196 Ct.Cl. 627 (1971); Keco Industries, Inc., supra, 428 F.2d at 1240. . An analogous question would be the extent to which an agency has discretion to construe its own authorizing legislation to determine the extent to which its decisions are to be unreviewable. In such cases, normally the initial inquiry as to the construction of an agency’s authorizing legislation is held to be a matter proper for judicial review, even if ultimately the decision is that the agency has unreviewable discretion under that legislation. See East Oakland-Fruitvale Planning Council v. Rumsfeld, supra; Fletcher v. Housing Authority of Louisville, 491 F.2d 793 (6th Cir. 1974). Similarly, “ ‘[wjhere the only or principal dispute relates to the meaning of the statutory term’ . . ." }, { "docid": "958638", "title": "", "text": "of Injunctive Relief 11. Proof of a substantial likelihood of success on the merits opens the remedial inquiry required by Holiday Tours, and, more particularly in the procurement setting, by M. Steinthal & Co. v. Seamans, supra. As the Court of Appeals established in Steinthal, once it appears a plaintiff will prevail, the Court still must be satisfied that affirmative relief would be beneficial to the public interest. [There are] two interrelated principles which we deem of especial importance for judicial consideration of emergency challenges to determinations of procurement officials: (1) courts should not overturn any procurement determination unless the aggrieved bidder demonstrates that there was no rational basis for the agency’s decision; and (2) even in instances where such a determination is made, there is room for sound judicial discretion, in the presence of overriding public interest considerations, to refuse to entertain declaratory or injunctive actions in a pre-procurement context. 147 U.S.App.D.C. at 233, 455 F.2d at 1301 (emphasis added). Such a formulation closely corresponds with the traditional balance-of-the-equities analysis. See, e.g., Washington Area Transit Com’n v. Holiday Tours, supra, 182 U.S.App.D.C. at 222-23, 559 F.2d at 842-43. See also Sun Ship v. Woolsey, supra, 484 F.Supp. at 1353-54. The inquiry concerning the public interest must be particularly exacting in a case where military procurement might be affected by affirmative relief. Cf. Perkins v. Lukens Steel, supra; Blackhawk Heating & Plumbing Co. v. Driver, 140 U.S.App.D.C. 31, 35, 433 F.2d 1137, 1141 (1970); Cessna Aircraft v. Brown, supra, 452 F.Supp. at 1253. Plaintiff now bears the burden of proving not only that interim relief is required to avoid irreparable injury to its judicially-protectable interests, but also that Steinthal’s “overriding public interest considerations” not only permit, but would require, such relief. 12. This case has special features relevant to the inquiry concerning the public interest. Defendant argues that competitive procurement now would be either “impossible” under the current SLEP timetable or “fiscally imprudent.” The public interest, defendant clearly implies, would not be served by an injunction its officers could not implement, or by an injunction that would involve more expense" } ]

[ { "docid": "23199831", "title": "", "text": "activities.” Holly’s appeal presents the usual argument of parties seeking to invalidate adverse arbitration awards. The Company insists that, under the teachings of the “Trilogy”, the question of whether a particular grievance is arbitrable requires less judicial scrutiny than the question of whether an award once rendered is enforceable. Arguing that the arbitrator exceeded his powers, the appellant relies principally on United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” Id. at 597, 80 S.Ct. at 1361. It is well established that arbitration is a matter of contract and that arbitration provisions are construed with great liberality. See, e.g. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 Sup.Ct. 1347, 4 L.Ed.2d 1409 (1960). Moreover, Holly is quite correct in its argument that simply because a court would compel arbitration in a particular dispute does not necessarily mean that it would approve of everything or anything which the arbitrator might decide in resolving the dispute. See Torrington Co. v. Metal Products Workers Union, 362 F.2d 677 (2d Cir. 1966); International Ass’n of Machinists AFL-CIO v. Hayes Corp., 296 F.2d 238 (5th Cir. 1961), rehearing denied, 316 F.2d 90 (1963). However, if the scope of judicial review in post-award proceedings were as broad as the appellant suggests, we would be tempted to slip into the practice, so prevalent before the “Trilogy”, of “deciding the merits in the guise of adjudicating the court-reserved issue of the scope * * * of the agreement to arbitrate.” United States Gypsum Co. v. United Steelworkers, 384 F.2d 38, 49 (5th Cir. 1967), cert. denied, 389" } ]

[ { "docid": "5673552", "title": "", "text": "before Mr. LeGrange, the company was represented by a non-lawyer, one Carl L. Ellman, a labor management relations specialist and consultant. In the view of the court, Ellman’s trial testimony was less than impressive, and in some instances, incredible. As an illustration of the latter, it is to be observed that Ellman testified that at the hearing on June 25th he showed Mr. LeGrange and Mr. Konowe, the attorney for the union, the alleged termination letter of March 23, 1973. As heretofore found, no such letter was submitted to the union, and I further find that this testimony of Ellman is not true. The main happening on June 25th occurred early when the parties arrived at the arbitrator’s rooms here in New York City. With Mr. Ellman was, among others, Mrs. Geraldine Sanderson, who shortly after her arrival became noticeably ill. Mrs. Sanderson’s condition caused concern to a number of persons present, including the arbitrator who asked early on if an ambulance should not be called for her. Mrs. Sanderson refused this suggestion, but nevertheless went almost at once to the Beekman Downtown Hospital in the company of Mrs. Giancarlo, the wife of the president of plaintiff and the administrator of plaintiff. What happened next is not, strangely enough, in significant dispute. Shortly after Mrs. Sanderson left for the hospital, the arbitrator for some reason took it upon himself ta telephone Beekman Downtown Hospital and ascertain that Mrs. Sanderson was in fact there. He learned that at that moment Mrs. Sanderson was in the emergency room of the hospital. LeGrange then joined the parties and their representatives and announced that he would proceed to hear the union’s witnesses. The arbitrator’s stand disturbed Ellman, who argued for an adjournment on the ground that he needed Mrs. Sanderson present in order to advise him so that he could properly cross-examine the union witnesses. The arbitrator apparently suggested at this point to Ellman that once the union witnesses were heard, he, the arbitrator, would consider Ellman’s application for an adjournment. I do not fcredit Ell-man’s denial that the arbitrator ever said such a" }, { "docid": "23604490", "title": "", "text": "one or more of the contract provisions may have been violated, or he may find either for or against the company on the merits. The arbitrator has a right to interpret and apply the contract and in doing so to consider not only the formal agreement but collateral materials as well including past prevailing practices in the company plant. See United Furniture Workers of America, AFL-CIO, Local No. 395 v. Virco Mfg. Corp., 257 F.Supp. 138, 143 (E.D.Ark.1962), citing United Steelworkers of America v. Warrior & Gulf Navigation Co., supra. Paraphrasing with approval a final observation from the magistrate’s report, we note that the issues in this case trigger an opposing interplay between two strong judicial policies, mandating on the one hand that doubts concerning arbitration be re solved in favor of coverage, and on the other requiring on motion for judgment on the pleadings that all doubts be resolved in favor of the non-moving party. Here, in light of the nature of the dispute and the contract provisions involved on this record, we conclude that the judgment of the district court granting the motion of the Union for judgment on the pleadings is affirmed. . The Honorable Albert G. Schatz. . The Honorable Richard C. Peck. . Letter addressed to Mr. Arden C. Walker of Iowa Beef Processors July 20, 1978 by Lewis Anderson, acting on behalf of the Union. . United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). . We do not mean to suggest that the Union was required to prove the merits of its grievance. Instead, the Union was required to allege in some fashion how the grievance pertained to the provisions allegedly violated. For example, in United Steelworkers v. Warrior & Gulf Navigation Co., supra, the union alleged that the company violated the “no lockout” provisions by contracting out work. The" }, { "docid": "6717964", "title": "", "text": "Further, the Court again selected a limitations period in accordance with “the national interests in stable bargaining relationships and finality of private settlements.” DelCostello, 462 U.S. at 171, 103 S.Ct. at 2294 (citing Mitchell, 451 U.S. at 70-71, 101 S.Ct. at 1567-68, Stewart, J., concurring). Most importantly for present purposes, the Court clearly indicated that these policy interests require a shorter period in actions to vacate arbitration agreements than in hybrid § 301 suits. The court pointed out that in Mitchell it analogized the employee’s claim to a suit to vacate an arbitration award in a commercial setting. It then distinguished such cases from hybrid claims. “The main difference is that a party to a commercial arbitration will ordinarily be represented by counsel or, at least, will have some experience in matters of commercial dealings and contract negotiation. Moreover, an action to vacate a commercial arbitral award will rarely raise any issues not already presented and contested in the arbitration proceeding itself.” DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. These points also distinguish hybrid claims from suits to vacate labor arbitrations. The present case is illustrative. Both parties were represented at the arbitration by experienced labor representatives. The employee was represented by Mr. Clarence W. Gipson, an international representative of the union. The company, the party seeking to vacate the award here, was represented by counsel, Mr. Thomas P. Gies, who also represents the company in this litigation. Also, unlike hybrid causes, suits to vacate labor arbitration call upon the district courts to review the same issues which were before the arbitrator, albeit only to consider whether the conclusions about those issues draw their essence from the collective bargaining agreement. See e.g., United Steelworkers v. Enterprise Wheel and Car Corp. 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In addition to these differences, the Court noted the difficulty of detecting and mustering evidence to show the union’s breach of duty in hybrid cases, as well as the difficulty in ascertaining when the hybrid claim accrued. In suits to vacate labor arbitration, the evidence is usually limited" }, { "docid": "5673553", "title": "", "text": "went almost at once to the Beekman Downtown Hospital in the company of Mrs. Giancarlo, the wife of the president of plaintiff and the administrator of plaintiff. What happened next is not, strangely enough, in significant dispute. Shortly after Mrs. Sanderson left for the hospital, the arbitrator for some reason took it upon himself ta telephone Beekman Downtown Hospital and ascertain that Mrs. Sanderson was in fact there. He learned that at that moment Mrs. Sanderson was in the emergency room of the hospital. LeGrange then joined the parties and their representatives and announced that he would proceed to hear the union’s witnesses. The arbitrator’s stand disturbed Ellman, who argued for an adjournment on the ground that he needed Mrs. Sanderson present in order to advise him so that he could properly cross-examine the union witnesses. The arbitrator apparently suggested at this point to Ellman that once the union witnesses were heard, he, the arbitrator, would consider Ellman’s application for an adjournment. I do not fcredit Ell-man’s denial that the arbitrator ever said such a thing. In any event, Ellman immediately left, as did apparently other company representatives who were present. The arbitrator then proceeded to hear union witnesses without any company representatives or witnesses being present. Some three days later, on June 28, 1973, Ellman submitted ex parte to Le-Grange a letter requesting permission to submit further evidence. So far as can be determined, the arbitrator never responded to this letter. Finally, on October 17, 1973, arbitrator LeGrange entered his opinion and award in favor of the union in the sum of $100,000. Questions Concerning the Scope of Jurisdiction of This Court Although the parties and their counsel have not concerned themselves with this, the court must preliminarily concern itself with questions concerning the scope of its jurisdiction. Given the diversity of citizenship of the parties plus their, apparent concession that each is an organization dealing with activities in commerce, it would appear that this court has at least general jurisdiction under the Federal Arbitration Act and under § 301 of the Labor Management Relations Act. 29 U.S.C. §" }, { "docid": "5673549", "title": "", "text": "union dues and initiation fees with other funds of the plaintiff employer. (f) The alleged refusal of the plaintiff employer to allow union shop stewards to handle union problems during company time. (g) A charge that part-time employees have not received minimum wages or increases as specified in the contract.” Thereafter, it seems that the arbitrator set down several hearing dates only to have one or the other of the parties seek successfully an adjournment. On June 12, 1973, the union, prior to any significant hearings before the arbitrator, sent a letter to the company and the arbitrator setting forth “additional disputes or grievances” and requested that these be arbitrated with the matters set forth in the union’s petition of March 12th. In this letter, the Local asked for damages of $175,000.00 because of the violations mentioned in the March 12 notice. In addition, the union asked to have the dismissal of employee Joseph Crowley arbitrated. Thus, the arbitrator set down these additional disputes or grievances for hearing on June 25, 1973, the same day on which he had adjourned the earlier issues for hearing. The Events of March 23, 1973 In the course of the trial or hearings before this court, parties and their counsel devoted most of their attention to the events of the day of March 23, 1973. This is because of the plaintiff’s contention that in accordance with the provisions of the collective bargaining agreement of 1968, plaintiff on that day submitted a letter to the union terminating that agreement by its terms. Plaintiff produced a great number of witnesses who testified, most unconvincingly, to the effect that about noon on that day in the offices of plaintiff, Mrs. Geraldine Sanderson, the administrative assistant for plaintiff, delivered to union agent Aldrich a termination letter signed by plaintiff’s president. See Plaintiff’s Exhibit 1. This court finds that no such letter was delivered to the union terminating the contract on that day or any other day. On the whole, the court finds the witnesses for the union on this issue to be more credible than those submitted by" }, { "docid": "5673557", "title": "", "text": "As plaintiff points out, the plain language of the Federal Arbitration Act, 9 U.S.C. § 10(c), provides that failure to permit one or the other of the parties an adjournment under circumstances calling for such is enough to vitiate an arbitrator’s award. It is also true, as the union argues, that a court such as this one has to examine the facts and circumstances surrounding the arbitrator’s refusal to grant an adjournment. Unfortunately, neither the parties nor this court have been able to find any authorities closely in point to the facts which have been found to pertain on June 25th. See generally, Tube & Steel Corporation of America v. Chicago Carbon Steel Products, 319 F.Supp. 1302 (S.D.N.Y.1970). Nonetheless, and despite the peculiar and ill-advised conduct of Ellman who chose to leave the hearing room when arbitrator LeGrange insisted that the union’s case at least go forward, I am inclined to think that the plaintiff has the better of the arguments — and this notwithstanding the incredible testimony of many of its witnesses and the occasional distressing misrepresentations of fact and law submitted by its counsel before this court. Although it is true that Ellman is not a lawyer, he certainly was entitled to cross-examine the union witnesses who were produced on June 25th. I also infer from the evidence that Mrs. Sanderson was a crucial, if not the most crucial, representative of the plaintiff in connection with the various grievances which were being arbitrated. It is true that her immediate superior, Mrs. Giancarlo, was present on June 25th. On the other hand, there does not seem to be much doubt but that Mrs. Sanderson knew more about the matters at hand than did Mrs. Giancarlo. It is also true, as apparently concerned arbitrator LeGrange, that there had been at least four adjournments of the hearing before June 25th. At the very least, two of those adjournments were at the request of the union, three of whose officials were under indictment at the time in the United States District Court for the Eastern District of New York. There is evidence" }, { "docid": "5673551", "title": "", "text": "plaintiff. Moreover, the court is aided in this finding by the preliminary finding that at no time before the arbitrator did any representative of plaintiff ever mention or make an argument based upon the alleged termination letter of March 23, 1973. From these findings, it follows that the claims of the company before this court, to the effect that the arbitration issues submitted by the union in its letter of June 12th were foreclosed by the termination, is not correct. Parenthetically, however, it is noted that even without these findings, the language of Article 9 leads this court to conclude that such issues, with one possible exception, although raised after March 12, nevertheless were issues which arose prior to. any alleged termination and thus were clearly arbitrable before Mr. LeGrange. See, United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Holly Sugar Corp. v. Distillery Workers Union, 412 F.2d 899, 903-904 (9th Cir. 1969). The Events of June 25, 1973 In connection with the arbitration proceedings before Mr. LeGrange, the company was represented by a non-lawyer, one Carl L. Ellman, a labor management relations specialist and consultant. In the view of the court, Ellman’s trial testimony was less than impressive, and in some instances, incredible. As an illustration of the latter, it is to be observed that Ellman testified that at the hearing on June 25th he showed Mr. LeGrange and Mr. Konowe, the attorney for the union, the alleged termination letter of March 23, 1973. As heretofore found, no such letter was submitted to the union, and I further find that this testimony of Ellman is not true. The main happening on June 25th occurred early when the parties arrived at the arbitrator’s rooms here in New York City. With Mr. Ellman was, among others, Mrs. Geraldine Sanderson, who shortly after her arrival became noticeably ill. Mrs. Sanderson’s condition caused concern to a number of persons present, including the arbitrator who asked early on if an ambulance should not be called for her. Mrs. Sanderson refused this suggestion, but nevertheless" }, { "docid": "5673548", "title": "", "text": "mandatory and injunctive relief and to assess damages.” On or about March 12, 1973, the union invoked the arbitration procedures under Article 9 of the contract, and the issues raised initially by the union were submitted to arbitrator Herbert A. Le-Grange, who was named as a defendant in this action but, since filing a petition for removal to this court, has made no further appearance in these proceedings. The union’s letter or notice to arbitrate of March 12, 1973 is not in the record before this court. As stated by plaintiff, however, the issues raised in that notice included: “(a) Disability payments to the State of New Jersey (employee contributions) . (b) The furnishing by the plaintiff employer of a list of employees and their benefits. (c) The alleged failure of the plaintiff employer to remit the dues and initiation fee of one employee to the defendant union. (d) The alleged refusal of plaintiff employer to require employees to become union members after thirty (30) days employment. (e) The alleged commingling by the plaintiff of union dues and initiation fees with other funds of the plaintiff employer. (f) The alleged refusal of the plaintiff employer to allow union shop stewards to handle union problems during company time. (g) A charge that part-time employees have not received minimum wages or increases as specified in the contract.” Thereafter, it seems that the arbitrator set down several hearing dates only to have one or the other of the parties seek successfully an adjournment. On June 12, 1973, the union, prior to any significant hearings before the arbitrator, sent a letter to the company and the arbitrator setting forth “additional disputes or grievances” and requested that these be arbitrated with the matters set forth in the union’s petition of March 12th. In this letter, the Local asked for damages of $175,000.00 because of the violations mentioned in the March 12 notice. In addition, the union asked to have the dismissal of employee Joseph Crowley arbitrated. Thus, the arbitrator set down these additional disputes or grievances for hearing on June 25, 1973, the same day" }, { "docid": "5673555", "title": "", "text": "185. But recent decisions in this circuit point up the importance of making sure that the district court has power or jurisdiction specifically in respect to matters and purposes for which it is called upon to act. See In re I/S Stavborg, etc. v. National Metal Converters, Inc., 500 F.2d 424 (2d Cir. 1974) (“Stavborg”). Under accepted law, a suit may be maintained under § 301 by a party to a collective bargaining agreement to enforce the award of an arbitration. General Drivers, Local Union No. 89 v. Riss & Co., 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 n. 1, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Although these cases do not refer to the Arbitration Act, 9 U.S.C. § 1 et seq., it would seem that to “round out its power to afford relief in agreements to arbitrate, it is obvious that the court also possesses the power to vacate or modify an arbitration award under Section 301.” White Motor Corp. v. International Union, U.A., A. & A.I.W., No. 932, 365 F.Supp. 314, 316-317 (S.D.N.Y.1973). Cf. White Motor Corporation v. International Union U.A.W., 491 F.2d 189 (2d Cir. 1974). Furthermore, unlike Stavborg, this suit may be removed to a federal court even if the parties intended the judgment of the arbitrator to be entered in a state rather than a federal court. Local 174 Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). 28 U.S.C. § 1441. Moreover, the law to be applied in this case is federal law, Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), and since there is a specific statute governing arbitration, it should be applied here. The Adjournment Issue The first of plaintiff’s two contentions before this court is that arbitrator LeGrange committed plain legal error when he refused to give plaintiff an adjournment on June 25, 1973, aware as he clearly was of the bona fide and serious illness of Mrs. Sanderson." }, { "docid": "20826120", "title": "", "text": "awards of the Arbitrator shall be final and binding. The arbitration hearing occurred on January 15, 1969. The Board denied plaintiff’s grievance in a decision returned on March 12, 1969. The pre-trial order sets out plaintiff’s claims: Against the Union — that it “breached its duty of fair representation by not properly representing him during the grievance procedure and by proceeding to arbitration in a matter which raised factual questions as to plaintiff’s conduct and the conduct of others without giving him the opportunity to be present.” Against the company — that it “breached its duty to him by discharging him arbitrarily, capriciously, discriminatorily and without proper cause.” Obviously, if the arbitration decision stands, there is no basis for a claim against either defendant. In the Steelworkers’ Trilogy, the Supreme Court made it clear that, under our national labor policy, settlement of labor disputes by arbitration is favored. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). See also, Amal. Ass’n. of Street, Elec. Ry., etc. v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), dissenting opinion of Mr. Justice White (with whom Mr. Chief Justice Burger joined); Indep. Oil Workers v. Mobil Oil Corp., 441 F.2d 651, 652 (3 Cir. 1971); Mason-Dixon Lines, Inc. v. Local Union No. 560, I.B.T., 443 F.2d 807, 809 (3 Cir. 1971); Local 616, I. U. E. R. & M. Workers v. Byrd Plastics, Inc., 428 F.2d 23, 25 (3 Cir. 1970); Northwest Airlines, Inc. v. Air Line Pilots Ass’n., 442 F.2d 251, 254 (8 Cir. 1971). Consistent with this judicially expressed enthusiasm for arbitral resolution of labor disputes is Section 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d): Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of" }, { "docid": "22940475", "title": "", "text": "dispute as “Employee Edward R. Bettencourt was terminated on March 10, 1973, in violation of the Collective Bargaining Agreement”. The Company’s answer to the complaint, filed on May 28, 1975, raised the defense that Betten-court’s sole remedy was to follow the grievance and arbitration procedures set forth in the Collective Bargaining Agreement. Reference was made to paragraph 1(f) of Article XXXIII of the agreement which provides that arbitration “shall be final and binding upon both parties”. It was at this stage that the district court stayed further proceedings pending report of the arbitrator. After a hearing, the arbitrator found that the Company had a reasonable basis for suspending Bettencourt on April 19. “Mr. Bettencourt’s response to his suspension as something he was expecting [;]... [his] failure to appear at his suspension hearing; his failure to come forward with some offer of proof as to his condition at the time these events were taking place; and the complete absence of any persuasive excuse for not doing so only lead to the conclusion that he had no justifiable grounds for his absence”. Noting evidence that the Company had in the past treated similar cases as voluntary quits, the Board went on to hold that Bettencourt’s termination on April 24 “was not in violation of the contract between the parties”. On appeal, Bettencourt asserts error in the granting of summary judgment in favor of the Company on Bettencourt’s claim for breach of contract after it had been determined by arbitration that Bettencourt’s termination did not violate the Collective Bargaining Agreement. However, as none of the limited grounds for reviewing an arbitration award is present here, we hold that summary judgment was properly entered for the Company. Where parties to a collective bargaining agreement have provided for arbitration as the final and binding method for settling grievances the arbitration award is normally non-reviewable by a court. See General Drivers, Warehousemen & Helpers, Local 89 v. Riss & Co., 372 U.S. 517, 519, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358," }, { "docid": "5673550", "title": "", "text": "on which he had adjourned the earlier issues for hearing. The Events of March 23, 1973 In the course of the trial or hearings before this court, parties and their counsel devoted most of their attention to the events of the day of March 23, 1973. This is because of the plaintiff’s contention that in accordance with the provisions of the collective bargaining agreement of 1968, plaintiff on that day submitted a letter to the union terminating that agreement by its terms. Plaintiff produced a great number of witnesses who testified, most unconvincingly, to the effect that about noon on that day in the offices of plaintiff, Mrs. Geraldine Sanderson, the administrative assistant for plaintiff, delivered to union agent Aldrich a termination letter signed by plaintiff’s president. See Plaintiff’s Exhibit 1. This court finds that no such letter was delivered to the union terminating the contract on that day or any other day. On the whole, the court finds the witnesses for the union on this issue to be more credible than those submitted by plaintiff. Moreover, the court is aided in this finding by the preliminary finding that at no time before the arbitrator did any representative of plaintiff ever mention or make an argument based upon the alleged termination letter of March 23, 1973. From these findings, it follows that the claims of the company before this court, to the effect that the arbitration issues submitted by the union in its letter of June 12th were foreclosed by the termination, is not correct. Parenthetically, however, it is noted that even without these findings, the language of Article 9 leads this court to conclude that such issues, with one possible exception, although raised after March 12, nevertheless were issues which arose prior to. any alleged termination and thus were clearly arbitrable before Mr. LeGrange. See, United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Holly Sugar Corp. v. Distillery Workers Union, 412 F.2d 899, 903-904 (9th Cir. 1969). The Events of June 25, 1973 In connection with the arbitration proceedings" }, { "docid": "1048169", "title": "", "text": "the agreement, and Times-World agreed. The parties attempted to settle the layoff grievances but were unsuccessful, and on March 16 Times-World and the Local agreed that the matter should go to binding arbitration as provided in the collective bargaining agreement. The parties selected an arbitrator and scheduled a hearing for June 23. The Local subsequently voted at a meeting in late March to rescind its agreement to arbitrate the dispute. At the next meeting in April, however, the Local reversed itself and voted to submit the layoff dispute to arbitration. Meanwhile, this action was filed in district court on March 15. Times-World filed a motion to dismiss or alternatively for summary judgment, contending that the dispute was subject to mandatory arbitra tion. The printers filed a motion on June 16 to stay arbitration proceedings. The district court denied Times-World’s motion to dismiss and granted the printers’ motion to stay arbitration until its further order. In the meantime, the printers amended their complaint, adding both unions as defendants. Times-World and the unions appeal the district court’s order staying arbitration. All the parties candidly acknowledge the well-recognized policy of federal labor law favoring arbitration of labor disputes. The Supreme Court in the Steelworkers Trilogy made clear that, except for matters specifically excluded from arbitration in the collective bargaining agreement, all questions on which the parties disagree must be submitted to arbitration. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The collective bargaining agreement in the instant case does not specifically exclude from arbitration the guarantee of job security contained in the addendum. Section 2-02 of the agreement provides: This Agreement alone shall govern relations between the parties on all subjects concerning which any provision is made in this Agreement, and any dispute involving any such subjects shall be determined in accordance with Section 8" }, { "docid": "5673558", "title": "", "text": "occasional distressing misrepresentations of fact and law submitted by its counsel before this court. Although it is true that Ellman is not a lawyer, he certainly was entitled to cross-examine the union witnesses who were produced on June 25th. I also infer from the evidence that Mrs. Sanderson was a crucial, if not the most crucial, representative of the plaintiff in connection with the various grievances which were being arbitrated. It is true that her immediate superior, Mrs. Giancarlo, was present on June 25th. On the other hand, there does not seem to be much doubt but that Mrs. Sanderson knew more about the matters at hand than did Mrs. Giancarlo. It is also true, as apparently concerned arbitrator LeGrange, that there had been at least four adjournments of the hearing before June 25th. At the very least, two of those adjournments were at the request of the union, three of whose officials were under indictment at the time in the United States District Court for the Eastern District of New York. There is evidence from which this court infers that at least two, if not three, of the four adjournments were sought by the union because of this pending criminal case. This being so, I cannot accept the arbitrator’s possible view that it was the plaintiff rather than the union which was the cause of most, if not all, of the adjournments. Furthermore, I note that it was as recent as June 12th when the union had added more issues to be tried out before the arbitrator. For this additional reason, I think he should have been required to exercise his discretion in favor of the company. Not only was Mrs. Sanderson noticeably ill in the presence of the arbitrator, but he even went to the added step of calling Beekman Downtown Hospital to ascertain whether in fact she had gone to that institution, which she clearly had done. One other point, albeit not raised by the parties, requires brief discussion. At page 3 of his opinion, the arbitrator based, at least in part, his refusal to grant plaintiff" }, { "docid": "13183866", "title": "", "text": "clauses in other contracts. To hold otherwise, as the majority does here, relieves the employer of its burden of showing that its actions were justified. The district court aptly summarized its reasons for affirming the arbitrator’s award as follows: It is clear that the Union wished the arbitrator to decide whether Mr. Hodges’ “warning notice and his discharge of March 11,1980 is ... for justifiable cause as per the labor agreement^”] Absent a formal submission of the issue, this grievance letter of March 12, 1980, served to present the issue to the arbitrator. The Court notes that very little, if any, evidence was presented at the arbitration hearing with regard to the past interpretations of section 8.4. However, that is not dispositive. What is dispositive is the fact that the Company relied on section 8.4 to discharge Mr. Hodges, and the grievance submitted to the arbitrator asked whether there was just cause for the warning and discharge. In United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, [363 U.S. 593 [80 S.Ct. 1358, 4 L.Ed.2d 1424] (1960)], an arbitrator’s award was challenged as going beyond the scope of the submission. The court held that he had not, noting that “he had stayed within the areas marked out for his consideration.” 363 U.S. at 597 [80 S.Ct. at 1361]. In the instant case, Lackawanna may not have agreed with [the arbitrator’s] construction of Section 8.4 of the CBA, but it cannot be said that the arbitrator went outside the areas marked for his consideration. “It is the arbitrator’s construction which was bargained for, and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 599, 80 S.Ct. at 1362. * * * This Court will not review the reasoning of the arbitrator; it has merely determined that [the arbitrator] reached a rational conclusion based on the terms of the CBA and the grievance submitted to him. *" }, { "docid": "10649239", "title": "", "text": "the assistance of an operating engineer. Company made no payment of wages to the Union, either for the period before the arbitrator’s decision or for the remainder of the project. Union now seeks to enforce the award in the amount of wages computed from the time the pumps started up on August 23, 1971, until they were cut off, March 23, 1972. II. Applicable Legal Standard The famous Steelworkers trilogy established the relative roles of court and arbitrator in the adjudication of labor grievances. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed. 2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Court directed lower courts to give considerable, but not conclusive, deference to the decisions of arbitrators. Justification for this abstention stems from the need for quick, decisive termination of labor disputes, as well as the general superiority of arbitrators and arbitration to judges and courts in resolving such grievances. Dunau, Three Problems in Labor Arbitration, 55 Va.L.Rev. 427 (1969); Aaron, Judicial Intervention in Labor Arbitration, 20 Stan.L.Rev. 41 (1967). Nonetheless, in United Steelworkers v. Enterprise Wheel & Car Corp., supra, in an exception cited as often as the general rule, the Supreme Court said that . an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. 363 U.S. at 597, 80 S.Ct. at 1361. This sole pronouncement of the Court on the subject, “ . . . does not endorse utter finality nor does it draw a clear line by which to separate prohibited review of the" }, { "docid": "3557062", "title": "", "text": "prevailing prior to the dispute shall be maintained until the controversy is disposed of as provided herein. . In this same grievance the Union also requested arbitration on the terms of the Company's counter-proposal if the Company is deemed to have offered the existing contract. In a separate grievance submitted at the same time the Union demanded arbitration on whether the Company could subcontract under whatever agreement was in existence; if a reasonable time for negotiating a new contract had passed, thus resulting in a lapse of the old collective bargaining agreement; and whether the phrase \"negotiation^ of a new agreement” implied that the bargaining unit could not be eliminated. . This is the collective name given to a series of three Supreme Court cases decided over a quarter century ago which are still considered the foundation of any decision involving arbitration imposed by collective bargaining agreements. See AT & T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 1418-19, 89 L.Ed.2d 648 (1986). The Trilogy consists of Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). . The collective bargaining agreement provided that it was to continue in effect beyond December 31, 1985 for a reasonable time for negotiation of a new agreement. For the purpose of this appeal it is unnecessary for us to determine the duration of the collective bargaining agreement. . This is an issue for the district court in the first instance. Our discussion is intended to show only that a colorable argument exists that even if the Company is deemed to have offered the existing contract, the Union's power to accept the offer may have terminated before its February 7, 1986 letter was sent. . At times, two categories of labor arbitration have been distinguished. The first is grievance arbitration which concerns disputes over the terms of existing contracts." }, { "docid": "5673556", "title": "", "text": "301.” White Motor Corp. v. International Union, U.A., A. & A.I.W., No. 932, 365 F.Supp. 314, 316-317 (S.D.N.Y.1973). Cf. White Motor Corporation v. International Union U.A.W., 491 F.2d 189 (2d Cir. 1974). Furthermore, unlike Stavborg, this suit may be removed to a federal court even if the parties intended the judgment of the arbitrator to be entered in a state rather than a federal court. Local 174 Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). 28 U.S.C. § 1441. Moreover, the law to be applied in this case is federal law, Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), and since there is a specific statute governing arbitration, it should be applied here. The Adjournment Issue The first of plaintiff’s two contentions before this court is that arbitrator LeGrange committed plain legal error when he refused to give plaintiff an adjournment on June 25, 1973, aware as he clearly was of the bona fide and serious illness of Mrs. Sanderson. As plaintiff points out, the plain language of the Federal Arbitration Act, 9 U.S.C. § 10(c), provides that failure to permit one or the other of the parties an adjournment under circumstances calling for such is enough to vitiate an arbitrator’s award. It is also true, as the union argues, that a court such as this one has to examine the facts and circumstances surrounding the arbitrator’s refusal to grant an adjournment. Unfortunately, neither the parties nor this court have been able to find any authorities closely in point to the facts which have been found to pertain on June 25th. See generally, Tube & Steel Corporation of America v. Chicago Carbon Steel Products, 319 F.Supp. 1302 (S.D.N.Y.1970). Nonetheless, and despite the peculiar and ill-advised conduct of Ellman who chose to leave the hearing room when arbitrator LeGrange insisted that the union’s case at least go forward, I am inclined to think that the plaintiff has the better of the arguments — and this notwithstanding the incredible testimony of many of its witnesses and the" }, { "docid": "5673554", "title": "", "text": "thing. In any event, Ellman immediately left, as did apparently other company representatives who were present. The arbitrator then proceeded to hear union witnesses without any company representatives or witnesses being present. Some three days later, on June 28, 1973, Ellman submitted ex parte to Le-Grange a letter requesting permission to submit further evidence. So far as can be determined, the arbitrator never responded to this letter. Finally, on October 17, 1973, arbitrator LeGrange entered his opinion and award in favor of the union in the sum of $100,000. Questions Concerning the Scope of Jurisdiction of This Court Although the parties and their counsel have not concerned themselves with this, the court must preliminarily concern itself with questions concerning the scope of its jurisdiction. Given the diversity of citizenship of the parties plus their, apparent concession that each is an organization dealing with activities in commerce, it would appear that this court has at least general jurisdiction under the Federal Arbitration Act and under § 301 of the Labor Management Relations Act. 29 U.S.C. § 185. But recent decisions in this circuit point up the importance of making sure that the district court has power or jurisdiction specifically in respect to matters and purposes for which it is called upon to act. See In re I/S Stavborg, etc. v. National Metal Converters, Inc., 500 F.2d 424 (2d Cir. 1974) (“Stavborg”). Under accepted law, a suit may be maintained under § 301 by a party to a collective bargaining agreement to enforce the award of an arbitration. General Drivers, Local Union No. 89 v. Riss & Co., 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 n. 1, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Although these cases do not refer to the Arbitration Act, 9 U.S.C. § 1 et seq., it would seem that to “round out its power to afford relief in agreements to arbitrate, it is obvious that the court also possesses the power to vacate or modify an arbitration award under Section" }, { "docid": "10649238", "title": "", "text": "the Agreement in refusing to employ Operating Engineers in the operation of the dewatering device in question.” In addition to answering the submitted question, the arbitrator formulated an award which mandated action by the Company: For the reasons given, the grievance is sustained and the Company directed to pay to the Union the wage scale applicable to operators over a twenty-four hour shift from the time the said system started until the date of compliance. Thus the arbitrator awarded wage payments to Union in two time segments. The first extended from the beginning of the project until the date of the arbitrator’s decision. The second segment, commenced on the decision date, was to terminate upon Company’s compliance with the contract. The first segment awarded damages to Union based upon the wage scale applicable to operators. The second was to provide incentive for Company’s compliance. But, the Company did not comply with the arbitrator’s decision. The men ordered to be hired were not hired, although the dewatering devices functioned for the duration of the project without the assistance of an operating engineer. Company made no payment of wages to the Union, either for the period before the arbitrator’s decision or for the remainder of the project. Union now seeks to enforce the award in the amount of wages computed from the time the pumps started up on August 23, 1971, until they were cut off, March 23, 1972. II. Applicable Legal Standard The famous Steelworkers trilogy established the relative roles of court and arbitrator in the adjudication of labor grievances. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed. 2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Court directed lower courts to give considerable, but not conclusive, deference to the decisions of arbitrators. Justification for this abstention stems from the need for quick, decisive termination of labor disputes, as well as the general" } ]

[ { "docid": "19020201", "title": "", "text": "with intent to distribute, and distribute cocaine. 21 U.S.C. §§ 841, 846, 952, 960, and 963. Before trial both moved to dismiss the indictment on double jeopardy grounds, claiming that their Guatemalan trial barred the federal prosecution. After a hearing on August 1, 1977, the district court denied this motion. We have jurisdiction to review denial of a motion to dismiss on grounds of double jeopardy by virtue of the collateral order exception to the final judgment rule. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). We find no violation of the double jeopardy clause on the facts of this case. The Supreme Court has ruled that neither a state prosecution nor one by an Indian tribe bars subsequent federal prosecution, since in each case the initial action has been brought by a sovereign separate from the United States. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). A fortiori, prosecution by a foreign sovereign does not preclude the United States from bringing criminal charges. If double jeopardy were applicable in such circumstances, “[pjrosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws.” United States v. Wheeler, 435 U.S. at 318, 98 S.Ct. at 1083. The case before us illustrates the need for each sovereign to retain the authority to enforce its own laws. Although conviction in the United States of the offenses charged here could lead to serious penalties, see, e. g., 21 U.S.C. § 841(b)(1)(A), Richardson and Gibbs were permitted to avoid prison terms by paying a relatively small sum of money. The facts indicate that United States officials and the government of Guatemala cooperated in apprehending these appellants, but that is a standard and an acceptable police practice. See Bartkus v. Illinois, 359 U.S. 121, 123, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (cooperation between state and federal authorities)." } ]

[ { "docid": "15243975", "title": "", "text": "is requested, would “be entitled to be discharged on the grounds of a previous acquittal or conviction in the territory of the requesting or requested Party or of a third State.” The dual criminality provision sets forth that extradition shall be granted for an offense punishable under the laws of both parties “by imprisonment or other form of detention for more than one year or by the death penalty.” In Dominica, Riviere pleaded guilty to (1) possession of narcotics (3 grams of mari juana); (2) possession of ammunition; (3) possession of a firearm; (4) possession of prohibited firearms; (5) failure to declare; and (6) importation of arms and ammunition. App. at 249. We, however, see no need to make an analysis of Dominican law to ascertain whether Riviere, after his guilty plea in Dominica, could have asserted a double jeopardy defense in Dominica if that country sought to prosecute him for the matters involving firearms in Information No. 89-41. We reach this conclusion because there is no reason to limit the waiver by the Dominican Attorney General to the rule of specialty as the waiver was open-ended without an exclusion for the double jeopardy provision of the treaty. Thus, the comity principles we have already discussed are as applicable to the double jeopardy contention as they are to the specialty argument. We note that Riviere does not seem to assert a double jeopardy argument under the Fifth Amendment independently of the treaty. Of course, even if he is asserting such a contention, it would be without merit, for it is well established that separate sovereigns may prosecute for the same act without violating double jeopardy protections. United States v. Wheeler, 435 U.S. 313, 317-18, 98 S.Ct. 1079, 1082, 55 L.Ed.2d 303 (1978) (Indian tribes are sovereigns such that a defendant may be prosecuted by both federal government and Navaho tribe for multiple crimes arising out of one act); Bartkus v. Illinois, 359 U.S. 121, 139, 79 S.Ct. 676, 686, 3 L.Ed.2d 684 (1959) (state’s prosecution of a defendant after acquittal on a federal indictment for substantially identical facts does not" }, { "docid": "21037251", "title": "", "text": "the different offense against the [other sovereign] and so is not double jeopardy.” United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142-43, 67 L.Ed. 314 (1922). Though first used by the Supreme Court to uphold a second prosecution in Lanza, the dual sovereignty doctrine was most prominently expounded in a pair of 1959 cases in which the High Court upheld a state prosecution following a federal acquittal for the same offense, see Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and conversely upheld a federal prosecution following a state conviction, see Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). At the time, the Double Jeopardy Clause was considered inapplicable to the states, and the early cases applying the doctrine appeared to rely in part on this fact. See Bartkus, 359 U.S. at 123-39, 79 S.Ct. at 678-86; Abbate, 359 U.S. at 189-96, 79 S.Ct. at 667-71; Lanza, 260 U.S. at 382, 43 S.Ct. at 142-43. Nevertheless, the Supreme Court has continued to espouse the dual sovereignty doctrine as it had been developed in Bartkus, Abbate, and Lanza, even after states were found to be fully subject to the commands of the Double Jeopardy Clause. See Heath v. Alabama, 474 U.S. 82, 87-89, 106 S.Ct. 433, 436-38, 88 L.Ed.2d 387 (1985); United States v. Wheeler, 435 U.S. 313, 316-18, 98 S.Ct. 1079, 1082-83, 55 L.Ed.2d 303 (1978). GPS and Phil Schaffer recognize the obstacle that the dual sovereignty doctrine poses, but they press their claim by arguing that this case comes within an exception to the doctrine, an exception that itself derives from the Supreme Court’s decision in Bartkus. 1. The Bartkus exception. In upholding a prosecution by the State of Illinois after a federal prosecution for the same offense, the Supreme Court in Bartkus indicated that the defendant could not reasonably claim that the state “was merely a tool of the federal authorities” or that “the state prosecution was a sham and a cover for a federal prosecution.” Bartkus, 359 U.S. at 123-24, 79 S.Ct. at" }, { "docid": "2784644", "title": "", "text": "and Oral Argument” (filing no. 10). Weaselhead subsequently filed an “Amended Motion to Dismiss [the] Indictment and Request for [an] Evidentiary Hearing and Oral Argument” (filing no. 24), in response to the Superseding Indictment (filing no. 18). In filing no. 24, Weaselhead alleges, inter alia, that (1) the subsequent federal prosecution of a nonmember Indian violates the Double Jeopardy Clause of the Fifth Amendment and (2) federal prosecutors are bound the March 20, 1997 plea agreement between Weaselhead and Winnebago tribal prosecutors. ANALYSIS The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. While the exact scope of this clause has resisted repeated efforts at definition, it is axiomatic that successive prosecutions for the same unlawful conduct initiated by separate sovereigns do not offend the Constitution. United States v. Wheeler, 435 U.S. 313, 316, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); See generally, Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (reaffirming the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same conduct); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (upholding successive state and federal prosecutions). In Heath v. Alabama, 474 U.S. 82, 90, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985), the Supreme Court explained the dual sovereignty doctrine as follows: “[T]he dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, [the defendant] has committed two distinct offences.” See Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2053, 135 L.Ed.2d 392 (1996) (reaffirming that successive prosecutions by separate sovereigns do not violate the Double Jeopardy Clause); United States v. Williams, 104 F.3d 213, 216 (8th Cir.1997). Consequently, when the same act transgresses the laws of" }, { "docid": "10954639", "title": "", "text": "denied, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979); Matter of Extradition of Montiel Garcia, 802 F.Supp. 773, 776 (E.D.N.Y.1992) (foreign sovereign); but cf. Restatement (Third) of The Foreign Relations Law of the United States, supra, § 476 cmt. c (“[T]he prohibition against double jeopardy may be applicable even if not spelled out in an applicable extradition treaty.”). United States domestic law on identity of conspiracies and double jeopardy as a constitutional right is not applicable in a case where extradition to the United States of a non-United States citizen has taken place pursuant to a treaty. Galanis v. Pallanck, 568 F.2d 234 (2d Cir.1977) (double jeopardy is not a constitutional right, but a treaty right included in most extradition treaties and as a matter of United States public policy); In re Ryan, 360 F.Supp. 270 (E.D.N.Y.1973) (no constitutional right for a non-United States citizen to be protected against double jeopardy), aff'd, 478 F.2d 1397 (2d Cir.1973); see also Cherif Bassiouni, International Extradition, United States Law and Practice 470-471 (2d Rev.1987). The United States-Luxembourg Extradition Treaty does, however, need to be interpreted with respect to international double jeopardy standards so as not to violate Luxembourg non bis in idem limitations expressed in the extradition decree. The doctrine of non bis in idem relates so closely to our double jeopardy concept that double jeopardy burdens of proof should apply. Since the defendant’s claim is non-frivolous, the United States has the burden of proving by a preponderance that non bis in idem does not apply. A defendant may be involved in multiple conspiracies, each constituting a separate crime for double jeopardy purposes, at the same time. Some may be of shorter duration than others, and some may have distinctly different goals and methods of operation. See, e.g., Kotteakos v. United States, 328 U.S. 750, 773-74, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946) (multiple conspiracies); United States v. Aracri, 968 F.2d 1512, 1522 (2d Cir.1992) (simple conspiracy); Leonard B. Sand, John S. Siffert, Steven A. Reiss & John E. Sexton, Jeffrey C. Thrope, Modern Federal Jury Instructions ¶ 19.01 and" }, { "docid": "14016193", "title": "", "text": "a narrow construction of the Mann Act as defendant urges upon us. In light of this overwhelming amount of case law, we hold that rape is an “immoral purpose” within the purview of the Mann Act. The district court’s jury instructions to that effect were therefore not in error. III Defendant next contends that his indictment, trial, and conviction by the United States on charges stemming from the same events which formed the basis of the charges on which he was acquitted in state court violate his constitutional protection against double jeopardy. However, the Supreme Court has consistently held that a conviction or acquittal by one sovereign does not constitute prior jeopardy for purposes of prosecution by the other sovereign. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (state prosecution followed by federal prosecution does not violate the Double Jeopardy clause); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (federal prosecution followed by state prosecution does not violate the Double Jeopardy clause). By every indication, this dual sovereign doctrine remains alive and well. See, e.g., United States v. Wheeler, 435 U.S. 313, 316-317, 98 S.Ct. 1079, 1082, 55 L.Ed.2d 303 (citing both Abbate and Bartkus with approval and repeating their holdings). Defendant’s prosecution by the United States, following his acquittal in state court, does not violate the Double Jeopardy clause. IV Defendant next contends that it was error for the district court to refuse to grant his motion to compel the discovery of various government documents relating to the initial decision to dismiss the original complaint and the subsequent decision to prosecute the defendant. Defendant appears to be making two related claims in connection with these requested documents. First, defendant claims that the government violated its own “Petite Policy” (n. 2 supra) and that this fact alone invalidates the government’s indictment and subsequent prosecution. Second, defendant claims that even if the government’s failure to meet its own “Petite Policy” does not automatically invalidate this prosecution, that factor plus the black composition of the state jury and the defendant’s own black race" }, { "docid": "22039549", "title": "", "text": "racketeering acts struck from the indictment on double jeopardy grounds. Jt.App. at 528. On appeal, Scafi-di and Scarfo revisit this issue, arguing that, in view of their acquittals in state court, double jeopardy principles precluded the government from charging the Falcone and Testa murders as predicate offenses. Brief for Scafidi at 9-14; Brief for Scarfo at 17-22. This argument is contrary to a long line of Supreme Court cases which have held that a federal prosecution arising out of the same facts which had been the basis of a state prosecution is not barred by the double jeopardy clause. United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 1084, 55 L.Ed.2d 303 (1978); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922). See also Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (due process clause does not prohibit a state from prosecuting a defendant for the same act for which he was acquitted in federal court). The “dual sovereignty” doctrine rests on the premise that, where both sovereigns legitimately claim a strong interest in penalizing the same behavior, they have concurrent jurisdiction to vindicate those interests and neither need yield to the other. The dual sovereignty doctrine has been interpreted by this court and others to mean that an acquittal in state court does not preclude the government from charging the offense subject to the acquittal as a predicate act in a subsequent RICO prosecution. United States v. Licavoli, 725 F.2d 1040, 1047 (6th Cir.), cert. denied, 467 U.S. 1252, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984); United States v. Russotti, 717 F.2d 27 (2d Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984); United States v. Frumento, 563 F.2d 1083 (3d Cir.1977), cert. denied, 434 U.S. 1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 (1978). In Frumento, which involved successive prosecutions for bribery and racketeering, we observed that the federal interest in prosecuting a RICO offense is significantly different than" }, { "docid": "10954638", "title": "", "text": "when defendants had moved for the dismissal of charges on the ground of double jeopardy. See also United States v. Inmon, 568 F.2d 326, 332 (3d Cir.1977) (same), cert. denied, 444 U.S. 859, 100 S.Ct. 121, 62 L.Ed.2d 79 (1979). Defendants must first show a non-frivolous claim of double jeopardy before the burden shifts to the government. DelVecchio, 800 F.2d at 22; United States v. Mallah, 503 F.2d 971, 984-86 (2d Cir.1974), cert. denied, 429 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). Strictly speaking, this case does not involve a claim of double jeopardy. Under the dual sovereignties theory, the United States is not bound by its internal law to recognize a previous conviction by another state for United States double jeopardy purposes. See, e.g., United States v. Wheeler, 435 U.S. 313, 317-18, 98 S.Ct. 1079, 1083, 55 L.Ed.2d 303 (1978) (state); Bartkus v. Illinois, 359 U.S. 121, 139, 79 S.Ct. 676, 686, 3 L.Ed.2d 684 (1959) (same); United States v. Richardson, 580 F.2d 946, 947 (9th Cir.1978) (foreign sovereign) (per curiam), cert. denied, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979); Matter of Extradition of Montiel Garcia, 802 F.Supp. 773, 776 (E.D.N.Y.1992) (foreign sovereign); but cf. Restatement (Third) of The Foreign Relations Law of the United States, supra, § 476 cmt. c (“[T]he prohibition against double jeopardy may be applicable even if not spelled out in an applicable extradition treaty.”). United States domestic law on identity of conspiracies and double jeopardy as a constitutional right is not applicable in a case where extradition to the United States of a non-United States citizen has taken place pursuant to a treaty. Galanis v. Pallanck, 568 F.2d 234 (2d Cir.1977) (double jeopardy is not a constitutional right, but a treaty right included in most extradition treaties and as a matter of United States public policy); In re Ryan, 360 F.Supp. 270 (E.D.N.Y.1973) (no constitutional right for a non-United States citizen to be protected against double jeopardy), aff'd, 478 F.2d 1397 (2d Cir.1973); see also Cherif Bassiouni, International Extradition, United States Law and Practice 470-471 (2d Rev.1987). The United" }, { "docid": "7316736", "title": "", "text": "v. Illinois, 55 U.S. (14 How.) 13, 19, 14 L.Ed. 306 (1852). “[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922) (upholding a federal prosecution under federal Prohibition laws after an earlier conviction for the same conduct under state law). Under this dual-sovereigns doctrine, the crucial question is whether the two proceedings against a litigant can be characterized as emanating from “distinct sources of power.” See Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). The Supreme Court has been unwavering in its conclusion that when the two “sources of power” at issue in a double jeopardy claim are the federal government and a state government, then the dual-sovereigns doctrine applies and there is no double jeopardy in the second prosecution. See United States v. Wheeler, 435 U.S. 313, 316-17 & n. 7, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). As the Court explained, “a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one.” Id. at 317 n. 7, 98 S.Ct. 1079. In Hopkins’ case, his first prosecution was in federal court for violation of the federal bribery law under 18 U.S.C. § 666. The second proceeding against Hopkins was before the Oklahoma pension board under Oklahoma’s pension forfeiture statute, Okla. Stat. tit 51, § 24.1(A). It is beyond doubt, therefore, that the “authority to punish” Hopkins in these two proceedings emanated from two “distinct sources of power.” See Heath, 474 U.S. at 88, 106 S.Ct. 433. As result, Oklahoma’s reduction in Hopkins’ pension benefits does not violate the Double Jeopardy Clause. Despite this conclusion, Hopkins argues that the dual-sovereigns doctrine does not apply in his case because of the “sham prosecution” exception under Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). In Bartkus, the Court held that" }, { "docid": "15243976", "title": "", "text": "Attorney General to the rule of specialty as the waiver was open-ended without an exclusion for the double jeopardy provision of the treaty. Thus, the comity principles we have already discussed are as applicable to the double jeopardy contention as they are to the specialty argument. We note that Riviere does not seem to assert a double jeopardy argument under the Fifth Amendment independently of the treaty. Of course, even if he is asserting such a contention, it would be without merit, for it is well established that separate sovereigns may prosecute for the same act without violating double jeopardy protections. United States v. Wheeler, 435 U.S. 313, 317-18, 98 S.Ct. 1079, 1082, 55 L.Ed.2d 303 (1978) (Indian tribes are sovereigns such that a defendant may be prosecuted by both federal government and Navaho tribe for multiple crimes arising out of one act); Bartkus v. Illinois, 359 U.S. 121, 139, 79 S.Ct. 676, 686, 3 L.Ed.2d 684 (1959) (state’s prosecution of a defendant after acquittal on a federal indictment for substantially identical facts does not violate due process clause). See also United States v. Pungitore, 910 F.2d 1084, 1105-07 (3d Cir.1990). Riviere possessed the weapons and ammunition as well as the marijuana in different jurisdictions which each prosecuted him for violations of its own statutes. While the statutes may overlap in content, “prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, ‘subject [the defendant] for the same offence to be twice put in jeopardy.’ ” Wheeler, 435 U.S. at 317, 98 S.Ct. at 1083. See also Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984). We also reject Riviere’s dual criminality claim. Initially in this regard we point out that we see no reason why the waiver by the Attorney General does not foreclose this issue, just as it does the specialty and double jeopardy contentions. We can conceive of no good reason why, if an asylum country extradites a requested person for a criminal act in the requesting state and voluntarily waives any limits on his prosecution, he cannot" }, { "docid": "16552620", "title": "", "text": "indictments, even if the prosecution does not rely on the same evidence and so, in that respect, does not litigate the same issues. See United States v. Tercero, 580 F.2d 312, 314 (C.A.8, 1978); United States v. Papa, 533 F.2d 815, 820 (C.A.2), cert. denied, 429 U.S. 961, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1976); United States v. Mallah, 503 F.2d 971, 985 (C.A.2, 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975); see also United States v. Inmon, 568 F.2d 326, 332 (C.A.3, 1977), cert. denied, 444 U.S. 859, 100 S.Ct. 121, 62 L.Ed.2d 79 (1979). It is true that the double jeopardy clause bars the government from repeated prosecution for what is in law and in fact one conspiracy. See United States v. Tercero, 580 F.2d 312, 314 (C.A.8, 1978). Courts have recognized that due to the complex nature of certain criminal conspiracies and the generally limited access that a defendant has to the proof that the government intends to offer, it can be unduly difficult to establish in support of a double jeopardy claim that allegedly separate conspiracies are, in fact, one. See United States v. Stricklin, 591 F.2d 1112, 1117-18 (C.A.5), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979); United States v. Inmon, 568 F.2d 326, 329 (C.A.3,1977), cert. denied, 444 U.S. 859, 100 S.Ct. 121, 62 L.Ed.2d 79 (1979); United States v. Kamins, 479 F.Supp. 1374, 1375 (W.D.Pa.1979). There is a danger that the government will “carve one large conspiracy into several smaller agreements.” United States v. Tercero, 580 F.2d 312, 315 (C.A.8, 1978). Recognizing this difficulty, the Court of Appeals for the Third Circuit held, in United States v. Inmon, supra, that, although the burden of establishing that separately charged conspiracies are not distinct initially rests on the defendant when a defendant makes a non-frivolous showing that an indictment charges the same offense as that for which he was formerly placed in jeopardy, the burden of establishing separate crimes — in this case separate conspiracies — is on the government. 568 F.2d at 331-32. The defendant" }, { "docid": "23475211", "title": "", "text": "nationals or by foreigners shall be prosecuted by the Party in whose territory the offense was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgment given. 18 U.S.T. 1407, 1425 (emphasis added). Chua cites no authority supporting the proposition that the Single Convention limits the extraterritorial jurisdiction of the United States. The plain language of the cited provision does not limit the jurisdiction of the United States. The only effect of the provision is that Malaysia would have been required to prosecute Chua if extradition had not been acceptable to Malaysia. The provision is not applicable in this case because extradition was acceptable to Malaysia. V DOUBLE JEOPARDY Chua argues that he was convicted in Malaysia for the same offense as in the instant case and that the fifth amendment bar against double jeopardy was thereby violated. Chua also argues that the Single Convention proscribes a second prosecution in the United States. These arguments are frivolous. This court rejected an identical double jeopardy argument in United States v. Richardson, 580 F.2d 946 (9th Cir.1978) (per curiam), cert. denied, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979). This court clearly held that “prosecution by a foreign sovereign does not preclude the United States from bringing criminal charges.” Id. at 947. The court also held that “the Convention neither affects the sovereignty of member nations nor embodies an agreement to refrain from prosecuting a defendant who has previously been tried by another signatory nation.” Id. Chua’s attempts to distinguish Richardson are unpersuasive. VI CREDIT FOR TIME SERVED Chua claims that the Bureau of Prisons has improperly denied him credit for the time served in Malaysia from August 4, 1975 to October 1, 1977. The Bureau based its decision on a telegram from the State Department which stated Chua’s initial arrest was “in no way related to the offense for which Chua was arrested and deported.” The Government contends" }, { "docid": "16552619", "title": "", "text": "conspiracy charged in the case sub judice is actually the same as that charged in the 1979 Indictment and that allowing the prosecution to proceed, therefore, would constitute double jeopardy. Although the defendant has not clearly separated his collateral estoppel from his double jeopardy argument, they should be distinguished. The two concepts are related, both being based on the double jeopardy clause of the Fifth Amendment. Collateral estoppel differs from the broader traditional rule against double jeopardy, however, in that it can preclude relitigation of an issue, even though the crimes charged in the two proceedings are admittedly distinct. Moreover, to be operative, collateral estoppel, at a minimum, requires a prior acquittal, while the general rule against double jeopardy precludes a second prosecution for the same crime regardless of the verdict in the original proceeding. Sheeran’s double jeopardy argument advanced here is based on the increasingly accepted position of the courts, that the rule against double jeopardy precludes a second prosecution for conspiracy if the defendant establishes that the same conspiracy is charged in both indictments, even if the prosecution does not rely on the same evidence and so, in that respect, does not litigate the same issues. See United States v. Tercero, 580 F.2d 312, 314 (C.A.8, 1978); United States v. Papa, 533 F.2d 815, 820 (C.A.2), cert. denied, 429 U.S. 961, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1976); United States v. Mallah, 503 F.2d 971, 985 (C.A.2, 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975); see also United States v. Inmon, 568 F.2d 326, 332 (C.A.3, 1977), cert. denied, 444 U.S. 859, 100 S.Ct. 121, 62 L.Ed.2d 79 (1979). It is true that the double jeopardy clause bars the government from repeated prosecution for what is in law and in fact one conspiracy. See United States v. Tercero, 580 F.2d 312, 314 (C.A.8, 1978). Courts have recognized that due to the complex nature of certain criminal conspiracies and the generally limited access that a defendant has to the proof that the government intends to offer, it can be unduly difficult to establish in" }, { "docid": "10954637", "title": "", "text": "procedure and sentence. The question of what evidence is admissible to prove a material proposition of fact in any prosecution in the receiving state is governed by the forum state’s — the receiving state — procedural and evidentiary rules. The doctrine of specialty is not designed to control the receiving state’s procedural rules so long as they do, not violate minimal standards of due process. The doctrine of specialty controls only the material elements of the rule of substantive law being enforced by the receiving state to ensure that prosecution is not precluded by the extradition documents and the Extradition Treaty. VI. BURDEN OF PROOF In criminal pretrial proceedings, unless Congress provides to the contrary, “proof by a preponderance of the evidence is the standard usually used.” United States v. Chimurenga, 760 F.2d 400, 406 (2d Cir.1985). This burden applies in a double jeopardy motion. United States v. DelVecchio, 800 F.2d 21 (2d Cir.1986). DelVecchio held that the government had the burden of establishing that there were separate conspiracies by a preponderance of the evidence when defendants had moved for the dismissal of charges on the ground of double jeopardy. See also United States v. Inmon, 568 F.2d 326, 332 (3d Cir.1977) (same), cert. denied, 444 U.S. 859, 100 S.Ct. 121, 62 L.Ed.2d 79 (1979). Defendants must first show a non-frivolous claim of double jeopardy before the burden shifts to the government. DelVecchio, 800 F.2d at 22; United States v. Mallah, 503 F.2d 971, 984-86 (2d Cir.1974), cert. denied, 429 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). Strictly speaking, this case does not involve a claim of double jeopardy. Under the dual sovereignties theory, the United States is not bound by its internal law to recognize a previous conviction by another state for United States double jeopardy purposes. See, e.g., United States v. Wheeler, 435 U.S. 313, 317-18, 98 S.Ct. 1079, 1083, 55 L.Ed.2d 303 (1978) (state); Bartkus v. Illinois, 359 U.S. 121, 139, 79 S.Ct. 676, 686, 3 L.Ed.2d 684 (1959) (same); United States v. Richardson, 580 F.2d 946, 947 (9th Cir.1978) (foreign sovereign) (per curiam), cert." }, { "docid": "11341188", "title": "", "text": "Circuit to determine the validity of a double jeopardy claim remains the “same evidence” test endorsed by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See United States v. Zwego, 657 F.2d 248, 251 (10th Cir. 1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1275, 71 L.Ed.2d 460 (1982); United States v. Martinez, 562 F.2d 633, 637 (10th Cir. 1977); Robbins v. United States, 476 F.2d 26, 32 (10th Cir. 1973). That rule provides that offenses charged are identical in law and fact only if the facts alleged in one would sustain a conviction if offered in support of the other. “Where one count requires proof of a fact which the other count does not, the separate offenses charged are not identical, even if the charges arise out of the same acts.” Id. at 32-33. In this Court, both the indictment and the transcript of the previous trial may be considered in evaluating a subsequent double jeopardy claim. United States v. Henry, 504 F.2d 1335, 1338 (10th Cir. 1974), cert. denied, 421 U.S. 932, 95 S.Ct. 1660, 44 L.Ed.2d 90 (1975) (the judgment not the indictment acts as a bar); Tritt v. United States, 421 F.2d 928, 930 (10th Cir. 1970). Cf. United States v. Cowart, 595 F.2d 1023, 1029-30 (5th Cir. 1979) (double jeopardy focuses on the elements of the crime and not the evidence adduced). While we adhere to the same evidence test, we recognize that it has been criticized in recent years as an inadequate measurement of double jeopardy when applied to multiple prosecutions for conspiracy charges. See, e.g., United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981); United States v. Tercero, 580 F.2d 312, 314-15 (8th Cir. 1978); United States v. Mallah, 503 F.2d 971, 985 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). Krown urges us to employ the “totality of the circumstances” test adopted by the Sixth and Eighth Circuits in Jabara, supra, and Tercero, supra, to determine that his double jeopardy rights were violated" }, { "docid": "15376737", "title": "", "text": "without inspecting its. contents, he placed his toiletries and two magazines inside the case. Yagih testified that Nazih first informed him of the contraband cargo upon arrival in New York, when Nazih advised him that the case contained hashish and that Gerbino and Silvestro were affiliated with the Mafia. Yagih denied ever speaking with Officer Gerbino while en route to Rochester. He did admit that he inspected the smuggler’s vest at the Rochester airport but maintained he did so at Nazih’s instruction. Discussion 1. Appellant first argues that since he was acqúitted by a New York State jury on New York State charges involving criminal sale and possession of heroin, the subsequent federal prosecution, based on the same underlying events, violates the Double Jeopardy Clause of the Fifth Amendment. Yagih maintains that double jeopardy concerns are particularly implicated in a case where, as here, the criminal activity is investigated by a joint federal-state task force, and the initial prosecution is pursued by the sovereign expected to impose greater sanctions. The Supreme Court has long held that an acceptable cost of federalism, tolerable under principles of both double jeopardy and due process, is the risk of successive prosecutions by. state and federal authorities for identical conduct. The so-called “dual sovereignty” principle is equally applicable whether the first prosecution results in acquittal, Bartkus v. United States, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), or conviction, Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). The continued vitality of this doctrine, recognized since as early as Moore v. Illinois, 55 U.S. (14 How.) 13,14 L.Ed. 306 (1852), has been recently reaffirmed by the Supreme Court. United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 1084, 55 L.Ed.2d 303 (1978). A narrow exception to the “dual sovereignty” doctrine, carved out in Bartkus v. Illinois, supra, bars a second prosecution where one prosecuting sovereign can be said to be acting as a “tool” of the other, id., 359 U.S. at 123, 79 S.Ct. at 678, or where the second prosecution amounts to a “sham and" }, { "docid": "10954631", "title": "", "text": "Law and Practice supra at 359-361 (principle of specialty). C. Non Bis In Idem Clauses providing for protection against double jeopardy are common in extradition treaties. Galanis v. Pallanck, 568 F.2d 234, 238-39 (2d Cir.1977). See also Restatement (Third) of the Foreign Relations Law of the United States § 476 cmt. c (double jeopardy). The terms, definitions and interpretations of the meaning of double jeopardy vary from treaty to treaty. The court in Sindona v. Grant, 619 F.2d 167 (2d Cir.1980), in discussing the history of non bis in idem limitations in extradition treaties, noted that the terms “same offense” and “same conduct” are subject to broad interpretive leeway. “Same conduct” may range from “identical acts” to “multiple acts committed in more than one place and at different times but related by the actor’s initial design;” “same offenses” may range from “identical charges” to “related ... but not included [offenses].” Id. at 177 (quoting Bassiouni, International Extradition and World Public Order 452-59 (1974)). The Sindona court acknowledged that extradition treaties with civil law countries which incorporate formulations such as “acts” and other similar terms rather than “offenses,” confer a broader protection for defendants than does the double jeopardy provision of the United States Constitution. It recognized that the scope of any given double jeopardy provision depends in large measure on interpretations given these terms that are borrowed from the domestic law and policies of the contracting parties. The dou ble jeopardy rules of the surrendering state at the time of extradition should be applied to a treaty provision. Sindona, at 177-78. Since the United States was the surrendering state in the case of Sindona, the United States court applied its domestic law in the interpretation of the double jeopardy provision in its extradition treaty with Italy. The court found no violation of double jeopardy. It ruled that “although the alleged Italian crime may have been the but for cause of the alleged American offenses ... it is not the crime for which the United States is proceeding against him.” Id. at 179. In the instant case there is an explicit" }, { "docid": "1736523", "title": "", "text": "confirmed by the telephone call. The court is convinced that Sgt. McVey had a reasonable basis to believe that Logan was guilty of being involved in a conspiracy to distribute cocaine. Therefore, there was probable cause for the arrest. Opinion at 745-46. . Stanley also contends that his prior guilty plea on these state narcotics charges and the instant federal narcotics charges violates the double jeopardy clause of the Fifth Amendment. Stanley's argument rests upon an inapposite case, Grady v. Corbin — a case involving two successive state prosecutions. See 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). The Supreme Court has stated that dual sovereignty permits a defendant to be punished by both the state and federal sovereigns for the same act. See Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. 666, 671, 3 L.Ed.2d 729 (1959); United States v. Harrison, 918 F.2d 469, 474 (5th Cir.1990) (”[T]he Supreme Court has held that, based on the dual sovereignty concept underlying the federal union, an act may be a crime under both federal and state laws and a defendant may be punished by each sovereign for the same act without offending the double jeopardy clause.”). This doctrine is, however, limited by the qualification that one sovereign’s prosecution may not be used as a disguise for another sovereign’s prosecution. See Bartkus v. Illinois, 359 U.S. 121, 124, 79 S.Ct. 676, 678, 3 L.Ed.2d 684, reh’g denied, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). The defendant bears the burden of proof in raising such a double jeopardy claim. See United States v. Patterson, 809 F.2d 244, 247 (5th Cir.1987) (\"The Supreme Court has held that, based on the dual sovereignty concept underlying the federal union, an act [of a defendant] may be punished by each sovereign for the same act without offending the double jeopardy clause.”); United States v. Stricklin, 591 F.2d 1112, 1117-18 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). Stanley has not met this burden and has failed to show that the federal prosecution was merely" }, { "docid": "20964431", "title": "", "text": "the issues in the following manner: I) those issues common to all defendants; II) those issues raised by particular defendants; III) sentencing matters. I Issues Common to All Defendants A. Double Jeopardy Clause Each of the three appellants maintains that his prosecution and conviction offends the Constitution’s proscription against Double Jeopardy. Mr. Jones and Mr. Young assert that their successive state and federal prosecutions for kidnapping violate Double Jeopardy Clause’s guarantee against a second prosecution for the same offense after acquittal. Mr. Young and Mr. Humphrey assert that the Mann Act and kidnapping violations comprise but one offense because the transportation of the victim across state lines was incidental to the commission of the attempted rape. Thus, the appellants argue that the dual convictions violate Double Jeopardy’s proscription against multiple punishment for a single offense. Both of these contentions are without merit. 1. Successive State and Federal Prosecutions As Judge Cummings pointed out in Mitchell, the Supreme Court has consistently held that a conviction or acquittal by one sovereign does not constitute prior jeopardy for purposes of prosecution by the other sovereign. Id. at 1276; see Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (state prosecution followed by federal prosecution); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (federal prosecution followed by state prosecution). Dual sovereignty remains a vital doctrine. “[P]rosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, ‘subject [the defendant] for the same offense to be twice put in jeopardy.’ ” United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 1083, 55 L.Ed.2d 303 (1978); see also United States v. Schwartz, 787 F.2d 257, 266 (7th Cir.1986). It is clear that appellants’ successive state and federal trials do not offend the Constitution. Nor are the successive prosecutions vulnerable to attack as violating the Petite Policy. The “Petite Policy” is an internal policy statement that was promulgated by the Attorney General in 1959 to establish uniform guidelines for dual and successive federal prosecutions. See Petite v. United States, 361" }, { "docid": "10954630", "title": "", "text": "use of faits relied upon at the Luxembourg trial for prosecution of defendants in the United States. In deciding whether the limitation in the Luxembourg decree can be deemed to fall under the doctrine of specialty and thus be relied upon by defendants as a cause for dismissal, the decree must be viewed as an extension and integral part of the Treaty with as much binding legal weight as the Treaty itself. Language in extradition orders are binding extensions of treaty obligations, whether as express waivers of treaty obligations, as in Riviere, or as ambiguous instructions left to be interpreted by the requesting state’s court in determining the surrendering state’s intent. See Cuevas, 847 F.2d at 1417. The experts properly indicated that the effect of extradition pursuant to the United States-Lxuembourg Treaty is controlled by its specialty provision in Article III. See Parts III and IV, supra. This provision is then subject to any particular limitations that may be included by the surrendering state in its extradition decree. See also Bassiouni, International Extradition, United States Law and Practice supra at 359-361 (principle of specialty). C. Non Bis In Idem Clauses providing for protection against double jeopardy are common in extradition treaties. Galanis v. Pallanck, 568 F.2d 234, 238-39 (2d Cir.1977). See also Restatement (Third) of the Foreign Relations Law of the United States § 476 cmt. c (double jeopardy). The terms, definitions and interpretations of the meaning of double jeopardy vary from treaty to treaty. The court in Sindona v. Grant, 619 F.2d 167 (2d Cir.1980), in discussing the history of non bis in idem limitations in extradition treaties, noted that the terms “same offense” and “same conduct” are subject to broad interpretive leeway. “Same conduct” may range from “identical acts” to “multiple acts committed in more than one place and at different times but related by the actor’s initial design;” “same offenses” may range from “identical charges” to “related ... but not included [offenses].” Id. at 177 (quoting Bassiouni, International Extradition and World Public Order 452-59 (1974)). The Sindona court acknowledged that extradition treaties with civil law countries which" }, { "docid": "17038017", "title": "", "text": "the burden of persuasion from that point forward. The Third Circuit in Inmon concluded that the burden should then be placed on the government, basing its decision on practical considerations concerning access to proof and on the government’s control over the particularity with which indictments are drafted. 568 F.2d at 329-32. Accord, United States v. Mallah, 503 F.2d 971 (2d Cir.1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). We agree, for similar reasons, that the burden of establishing that the indictments charge separate crimes is most equitably placed on the government when a defendant has made a nonfrivolous showing that an indictment charges the same offense as that for which he was formerly placed in jeopardy. Stricklin even if fully applicable in this Circuit, does not support this defendant’s double jeopardy claim or defense. Examined in the light of the analysis in U.S. v. Cerro, 775 F.2d 908 (7th Cir.1985), the record here discloses that the indictment here and the one in Tampa were for similar but separate and distinct offenses. The same is true when this record is examined in light of the factual contest of U.S. v. West, 670 F.2d 675 (7th Cir.1982), with which this court is most familiar. The same can be said for U.S. v. Sinito, 723 F.2d 1250, 1255 (6th Cir.1983), cert. denied, — U.S.-, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984). This court has been much influenced by the dissenting opinion of Judge Arlin Adams in United States v. Sargent Elec. Co., 785 F.2d 1123 (3d Cir.1986) at page 1134 and takes the liberty to set out two extended quotes therefrom: The Fifth Amendment of the Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The bar against double jeopardy was taken from the English common law, where the concept developed as early as the thirteenth century. See, e.g., United States v. Wilson, 420 U.S. 332, 339-40 & n. 6, 95 S.Ct. 1013, 1019-20 & n. 6, 43 L.Ed.2d 232 (1975); Bartkus v. Illinois, 359" } ]

[ { "docid": "23308752", "title": "", "text": "depends on an unrecorded conveyance executed in 1916 by Howard to defendant’s predecessor, Charles K. Harris, the original publisher of Howard’s songs. The conveyance, which makes no mention of renewal rights, states in part that in consideration of $150 Howard conveys to Harris all his “right, title and interest by way of copyrights or otherwise * * * in and to all my musical compositions published by Chas. K. Harris of New York City.” Plaintiff’s claim of ownership is based on an agreement between it and Howard executed on June 6, 1933 (prior to the end of the original copyright terms), which clearly provided for the assignment of the renewal copyrights in Howard’s songs. This agreement, recorded in the Copyright Office ten months after its execution, was followed by specific assignments from Howard to plaintiff of each of the litigated songs after the copyrights were renewed. Each such assignment provided that it was made pursuant and subject to the agreement of June 6, 1933, and each was duly recorded within the statutory period provided in 17 U.S.C. § 80. In 1986, Howard executed seventeen separate assignments of the renewal rights to the songs in issue to defendant’s predecessor which subsequently were recorded. But these are of no help to defendant unless the instrument executed by Howard in 1916 conveyed to Harris the renewal rights, for, prior to the 1936 assignments, plaintiff had recorded the valid agreement assigning to it the renewal rights to the songs, as we have just stated. The cases are clear that a copyright renewal creates a separate interest distinct from the original copyright and that a general transfer by an author of the original copyright without mention of renewal rights conveys no interest in the renewal rights without proof of a contrary intention. G. Ricordi & Co. v. Paramount Pictures, Inc., 2 Cir., 189 F.2d 469, certiorari denied 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641; Rossiter v. Vogel, 2 Cir., 134 F.2d 908. Here we have a general transfer to defendant’s predecessor which makes no mention of renewal rights. But to show that Howard" } ]

[ { "docid": "15060962", "title": "", "text": "all three authors were alive on that date, the case falls within the rule of Fred Fisher Music Co. v. M. Witmark & Sons, supra. The Fisher case indicated that an author might challenge the validity of his assignment of his expectancy in the renewal rights if the consideration for the assignment was inadequate. Judge Dimock held that the 1923 assignment was supported by adequate consideration and we adopt his excellent analysis of the question as applied to the facts of this case, 176 F.Supp. 605, 611-612. See also Gumm v. Jerry Vogel Music Co., 2 Cir., 1946, 158 F.2d 516; Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., 2 Cir., 1958, 255 F.2d 518, 521-522, certiorari denied 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69. It is clear that unlike the 1910 agreement in Rossiter v. Vogel, 2 Cir., 1943, 134 F.2d 908, the 1923 assignment before us conveyed renewal rights, and this court has repeatedly held that a power of attorney to apply for renewal rights will be implied from the fact of the assignment. See Rossiter v. Vogel, supra, at page 911. Therefore we affirm Judge Dimock’s conclusion that appellee, having made a timely filing for renewal, is the present legal owner of the renewal copyright. Appellants also object to Judge Dimock’s award to appellee of $7,500 in attorney’s fees. The reasons for this award are to be found in the opinion below, 176 F.Supp. 605, 612. Under 17 U.S.C. § 116 the district court may award the prevailing party a reasonable attorney’s fee as part of the costs. There is no abuse of discretion here. Affirmed. . The lyrics of the song were written by Rose and Dixon. The music was composed by Henderson. The statute, 17 U.S.C. § 24, refers to all persons who create copyrightable works by the generic name “author.” Throughout this opinion Rose, Dixon and Henderson are referred to as “authors” in accordance with this statutory language." }, { "docid": "23044168", "title": "", "text": "not expressly mentioned, since defendant (unlike Miller in the instant case on September 10, 1931) already owned the basic copyright which the composers had conveyed to Watterson in 1926 and Watterson had conveyed to defendant in 1931, hence “the 1936 assignment could not possibly have been intended to convey the original copyright which had already been assigned” — thus distinguishing the case from Rossiter v. Vogel, supra, and Edward B. Marks Music Corp. v. Charles K. Harris Music Publishing Co., 255 F.2d 518 (2 Cir. 1958), cert. denied, 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69 (1958), in both of which cases “the assignor still held his original copyright as well as his renewal right at the time of making the conveyance in question.” Venus Music Corporation v. Mills Music, Inc., supra at 579. This Court in Venus noted that in Rossiter we sustained, as a transfer of renewal rights, the 1926 assignment of “all rights, title and interest in the song and all copyright renewals thereof” as against the 1910 general words of assignment of “all right, title and interests” with no mention of renewal rights; and that in Marks we sustained, as a transfer of renewal rights, the 1933 assignment which “clearly provided for the assignment of the renewal copyrights” as against the 1916 “general transfer to defendant’s predecessor which makes no mention of renewal rights”. Venus Music Corporation v. Mills Music, Inc., supra at 578-579. In Rohauer, the Ninth Circuit, in affirming a judgment for plaintiff to recover damages for copyright infringement of a-motion picture and to enjoin future infringement, cf. T. B. Harms Company v. Eliscu, 339 F,2d 823, 828 (2 Cir. 1964), was called upon to construe documents covering, the 36 year period from 1924 to 1960 relating to the purported assignment of the copyright to “The Navigator”; in doing so, it noted that “There are no issues of fact to be litigated * * * and the only issues to be litigated are matters of law.” In holding that the evidence supported the district court’s conclusion that a 1937 assignment from Metro-Goldwyn Pictures" }, { "docid": "133506", "title": "", "text": "term of twenty-eight years.” The assignment of the published work conveyed “the copyright acquired by [DWG Corp.] by public presentation of the motion picture photoplay”; a clear reference to the initial 28-year term, since the renewal term is separate from the initial term and not acquired through publication with notice, see Fred Fisher Music Co. v. M. Witmark & Sons, supra. Moreover, there is no specific reference in either assignment to the renewal term. This deficiency has generally been held as a matter of law, absent contrary evidence, to preclude a holding that a transfer of renewal rights was intended. “[A] general transfer by an author of the original copyright without mention of renewal rights conveys no interest in the renewal rights without proof of a contrary intention.” Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., supra, 255 F.2d at 521; see, e. g., G. Ricordi & Co. v. Paramount Pictures, Inc., supra, 189 F.2d at 471. Epoch points to no evidence of a different intention in the present case. While Epoch correctly observes that the assignment here is from a corporation and not from an individual author, we do not think that difference is critical here, where the corporation was controlled by the author. The policy behind the rule of construction restricting an assignment to the original term unless it refers to renewal rights is to protect authors from inadvertent transfers of renewal rights. That policy, it is true, might not govern a transfer from a corporation unrelated to the author, see Rohauer v. Friedman, 306 F.2d 933, 935-36 (9th Cir. 1962). Here, however, DWG Corp. was in effect the author’s alter ego. Epoch adduced no proof that DWG Corp. had any independent right (i. e., as purchaser for value or as employer for hire) to obtain the film copyrights. Thus DWG Corp. could only have obtained the copyright as the nominee or instrumentality of Griffith himself through assignment by Griffith of his common law copyright to the corporation, which need not have been in writing, cf. Dave Grossman Designs, Inc. v. Bortin, 347 F.Supp." }, { "docid": "23533832", "title": "", "text": "that a transfer comports with the parties’ intent. P.C. Films Corp., 188 F.3d at 457; Siegel v. Nat’l Periodical Publ’n, Inc., 508 F.2d 909, 913 (2d Cir. 1974) (noting that “general words of assignment can include renewal rights if the parties had so intended”). An author of a copyrighted work can assign the right to the renewal copyright before the renewal period commences: “An assignment by an author of his renewal rights made before the original copyright expires is valid against the world, if the author is alive at the commencement of the renewal period.” Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 375, 80 S.Ct. 792, 4 L.Ed.2d 804 (1960). An author, therefore, has the freedom to assign both his original and renewal-copyright interests at the same time, even if the renewal-copyright interest has not yet vested. Broad. Music, Inc., 396 F.3d at 768-69. If the author assigns his renewal copyrights and the renewal copyright term begins during the author’s lifetime, the author is bound by the assignment. Id. at 768. If, however, the author dies before vesting of the renewal copyright, the party to whom the renewal-copyright interest was conveyed loses the entitlement to that interest. Id.; Miller Music Corp., 362 U.S. at 378, 80 S.Ct. 792 (explaining that “assignees of renewal rights take the risk that the rights acquired may never vest in their assignors”). When interpreting the various publishing agreements between Miller and Sony, the district court properly relied on Tennessee law. See Yount v. Acuff Rose-Opryland, 103 F.3d 830, 835 (9th Cir.1996) (explaining that state contract law “determines the rights and obligations arising under a publishing contract that assigns a copyright”). Under Tennessee law, a court’s task when interpreting a contract is “to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the contractual language.” Teter v. Republic Parking Sys., 181 S.W.3d 330, 342 (Tenn.2005) (quoting Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999)). The Tennessee Supreme Court explained in Teter that if a contract’s language is unambiguous, the literal meaning of the language controls." }, { "docid": "1228438", "title": "", "text": "the renewal right was still owned by Lyman when, in 1936, he executed an unrecorded bill of sale conveying all of his right, title and interest in “Mary Lou” to defendant, its executors, administrators and assigns “forever” in exchange for $200 consideration. In 1947 Lyman and his wife executed an instrument, recorded in the copyright office, conveying to defendant their rights to the renewal copyrights on “Mary Lou” and five other songs. Defendant paid $500 advance royalties on this agreement. In the meantime, Lyman had executed in 1942 as assignment to plaintiff’s predecessor in interest, Fred Fisher Music Co., Inc., conveying his right to the renewal copyright to “Mary Lou” and other songs, in return for One Dollar consideration and a promise to pay royalties. Plaintiff claims that Lyman confirmed this assignment to Fisher by an instrument executed on July 9, 1953. However, Lyman later wrote Fisher denying any knowledge of this 1953 assignment. Relying on this court’s decisions in Rossiter v. Vogel, 2 Cir., 1943, 134 F.2d 908, and Edward B. Marks Music Corp. v. Charles K. Harris Music Publishing Co., 2 Cir., 1958, 255 F.2d 518, certiorari denied 1958, 79 S.Ct. 51, plaintiff argues that we must find “as a matter of law” that Lyman’s 1936 assignment to defendant did not include the renewal right. We do not believe that Rossiter and Marks compel such a holding. Both cases make it clear that general words of assignment can include renewal rights if the parties had so intended. Whether the evidence discloses such an intent is to be determined by the trier of the facts. Rossiter was an appeal from an order granting plaintiff’s motion for summary judgment. Plaintiff there relied on two assignments, one in 1910 employing general words of assignment, the other in 1926 specifically including renewal rights. In reversing the lower court’s ruling, this court held that the evidence and circumstances did not support a finding that the 1910 agreement was intended to transfer renewal rights, and that, at the very least, an issue of fact was presented. In Marks this court sustained the district court’s" }, { "docid": "2101181", "title": "", "text": "that authors have themselves devised means of safeguarding their interests. We do not have such assured knowledge about authorship, and particularly about song writing, or the psychology of gifted writers and composers, as to justify us as judges in importing into Congressional legislation a denial to authors of the freedom to dispose of their property possessed by others. While authors may have habits making for intermittent want, they may have no less a spirit of independence which would resent treatment of them as wards under guardianship of the law. 318 U.S. at 657, 63 S.Ct. at 779. Whether an assignment is construed to convey renewal rights as well as the original term of copyright is a question of fact which hinges on the intent of the parties; and the issue is to be decided from the attendant facts and circumstances. Rossiter v. Vogel, 134 F.2d 908 (2d Cir. 1943); Venus Music Corp. v. Mills Music, 261 F.2d 577 (2d Cir. 1958). Furthermore, “the circumstances justifying the transfer of the right of renewal must -be stronger than those justifying the transfer of the copyright * * Rossiter v. Vogel, 134 F.2d at 911; Shapiro, Bernstein & Co. v. Bryan, 123 F.2d 697, at 700 (2d Cir. 1941). It has been held that a general transfer by an author of the original copyright without mention of renewal rights conveys no interest in the renewal rights without proof of a contrary intention. G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469 (2d Cir.), cert. denied, 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641 (1951); Edward B. Marks Music Corp. v. Charles K. Harris Music Publishing Co., 255 F.2d 518 (2d Cir.), cert. denied, 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69 (1958). On the other hand, a trial court may infer from the acts of the parties and the surrounding circumstances an intention to convey renewal rights by general words or acts of assignment. Venus Music Corp. v. Mills Music, 261 F.2d 577 (2d Cir. 1958). An agreement to make royalty payments for an indefinite period on moneys accrued" }, { "docid": "23044169", "title": "", "text": "assignment of “all right, title and interests” with no mention of renewal rights; and that in Marks we sustained, as a transfer of renewal rights, the 1933 assignment which “clearly provided for the assignment of the renewal copyrights” as against the 1916 “general transfer to defendant’s predecessor which makes no mention of renewal rights”. Venus Music Corporation v. Mills Music, Inc., supra at 578-579. In Rohauer, the Ninth Circuit, in affirming a judgment for plaintiff to recover damages for copyright infringement of a-motion picture and to enjoin future infringement, cf. T. B. Harms Company v. Eliscu, 339 F,2d 823, 828 (2 Cir. 1964), was called upon to construe documents covering, the 36 year period from 1924 to 1960 relating to the purported assignment of the copyright to “The Navigator”; in doing so, it noted that “There are no issues of fact to be litigated * * * and the only issues to be litigated are matters of law.” In holding that the evidence supported the district court’s conclusion that a 1937 assignment from Metro-Goldwyn Pictures Corp. to Loew’s Inc. did effectively pass title to renewal rights, although the latter were not expressly mentioned in the general words of assignment, the court based its decision on the facts (i) that “shortly after this transfer Metro-Goldwyn Pictures Corp. was dissolved\" and went out of existence [which] course of action is, we think, inconsistent with- an intention to retain the right to renew the copyright of ‘The Navigator’, a right not exercisable until fifteen years after the 1937 assignment”, and (ii) that none of the parties before the court were the original authors or their heirs for whom the special statutory protection of Section 23 of the Copyright Act was intended, as construed by the Rossiter and Marks decisions of this Court. In this connection, the Ninth Circuit stated (306 F.2d 933, 935-936): “Defendant argues that unless the conveying instrument expressly states that the renewal rights have been conveyed, the courts will find that the parties did not intend to transfer them. This rule, however, reflects a policy of statutory copyright law which" }, { "docid": "23044170", "title": "", "text": "Corp. to Loew’s Inc. did effectively pass title to renewal rights, although the latter were not expressly mentioned in the general words of assignment, the court based its decision on the facts (i) that “shortly after this transfer Metro-Goldwyn Pictures Corp. was dissolved\" and went out of existence [which] course of action is, we think, inconsistent with- an intention to retain the right to renew the copyright of ‘The Navigator’, a right not exercisable until fifteen years after the 1937 assignment”, and (ii) that none of the parties before the court were the original authors or their heirs for whom the special statutory protection of Section 23 of the Copyright Act was intended, as construed by the Rossiter and Marks decisions of this Court. In this connection, the Ninth Circuit stated (306 F.2d 933, 935-936): “Defendant argues that unless the conveying instrument expressly states that the renewal rights have been conveyed, the courts will find that the parties did not intend to transfer them. This rule, however, reflects a policy of statutory copyright law which is not applicable to the facts of the case before us. By requiring the express mention of renewal rights in such transfers, thus avoiding an inadvertent or unintended transfer of such rights, the courts have found a means of carrying out the statutory policy of protecting the copyright interests of original authors and certain of their heirs. See 17 U.S.C. § 24; Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., 255 F.2d 518 (2nd Cir. 1958); and Rossiter v. Vogel, 134 F.2d 908 (2nd Cir. 1943). That policy and rule clearly have no application here, since none of the parties before the court are within the class of persons given special statutory consideration.” (Emphasis added.) . Supra note 4. . Rule 56(e), as amended January 21, 1963, effective July 1, 1963: “(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify" }, { "docid": "23533834", "title": "", "text": "Id. Additionally, under Tennessee law, a writing may be incorporated by reference into a written contract. If a writing is incorporated by reference, both writings must be construed together. Oman Constr. Co. v. Tennessee Cent. Ry. Co., 212 Tenn. 556, 370 S.W.2d 563, 570 (1963); Real Estate Mgmt. v. Giles, 41 Tenn.App. 347, 293 S.W.2d 596, 599 (1956) (“[WJhere several instruments are made as part of one transaction, they will be read together and each will be construed with reference to the other.”). Lastly, under Tennessee law, “the interpretation placed upon a contract by the parties thereto, as shown by their acts, will be adopted by the court and ... to this end not only the acts but the declarations of the parties may be considered.” Hamblen County v. Morristown, 656 S.W.2d 331, 335 (Tenn.1983). The district court correctly determined that the renewal copyrights in the 1958-1963 songs belonged to Sony. Appellants, however, assert that the renewal copyrights were never assigned to Sony. Appellants argue that the renewal copyrights are a separate property right and therefore could have been transferred only if the parties had executed the Exhibit A agreements — the only agreement specifically transferring the renewal copyrights. Because the publishing agreements made no reference to the renewal copyrights and the Exhibit A agreements were never executed, Appellants contend that Sony could not have received the renewal copyrights for Miller’s 1958-1963 songs. (Appellants’ Br. 17-18.) Appellants are incorrect. First, the language in the Exhibit A agreement is sufficient to convey the renewal-copyright interests because the language evinces a clear intent by Miller to transfer to Tree, and later to Sony, the renewal copyrights in the 1958-1963 songs. The Exhibit A agreement specifically states that Miller authorizes Sony to renew the copyrights in his songs: “The Composers hereby authorize and empower the Publisher to renew, pursuant to law, ... the copyright of the said musical composition ... and deliver ... a formal assignment of each renewal copyright to [Tree].... ” The express use of the term “renew” here evinces the intent to convey the renewal interest; this is particularly true" }, { "docid": "23044166", "title": "", "text": "provided the copyright is extended so long; and it is believed that in all such cases where the merit is very high this term is certainly not too long.” The Senate adopted the House report. Sen.Rep.No.1108, 60th Cong., 2d Sess. (1909). Commenting upon the amendment of the renewal provision in the Copyright Act of 1909, it has been said that “This change, however, was not intended to make the two terms of copyright a continuous estate subject to the ordinary rules governing the devolution of property”, Comment, 33 N.Y.U.L.Rev. 1027, 1029 (1958), but “On the contrary, the preservation of the discontinuity between the original and renewal terms as a protection to the author and his family against his own poor bargains was given such weight by Congress when it was preparing the act of 1909, that a single (and longer) term of life plus fifty years was rejected in favor of two terms of twenty-eight years. Id. at 1029 n. 20. See The Supreme Court, 1959 Term, 74 HarvX.Rev. 81, 115-116 (1960); Nim-mer, Copyright 461 (1965); U. S. Copy-Fight Law Revision Study No.. 31, 121-122 (1960). . Appellants’ reliance upon the cases of Venus Music Corporation v. Mills Music, Inc., 261 F.2d 577 (2 Cir. 1958), and Rohauer v. Friedman, 306 F.2d 933 (9 Cir. 1962), in support of their claim that \"Sou-mans assigned renewal rights without mentioning them in its September 10, 1931 assignment to Miller, is misplaced. Judge Kaufman’s opinion in Venus- is a perceptive, articulate confirmation of the views expressed in this dissent, for there the authors’ original 1926 assignment of the copyright in the song to Watterson, without mentioning renewal rights, was assumed not to have transferred them; the subsequent 1931 assignment by Watterson of its rights acquired in 1926 from the authors to defendant, expressly including renewal rights, was found not to have transferred renewal rights because Watterson was unable to convey them; the 1936 bill of sale from the composer, Lyman, to defendant of all his “right, title and interest” in the song was held, “under these circumstances”, to convey his renewal rights, although" }, { "docid": "15060961", "title": "", "text": "on April 23, 1923 as an unpublished work. Under Section 24 of the Copyright Act, 17 U.S.C. § 24, and Section 202.17(a) of the Rules of the Copyright Office, 37 C.F.R., application for renewal of a copyright upon a work originally registered in an unpublished form must occur within the twenty-eighth year of the copyright term. It is settled that prior to the renewal period an author’s interest in the renewal rights is only an expectancy which can be defeated by his death prior to the commencement of the renewal period. See Miller Music Corp. v. Charles N. Daniels, Inc., 80 S.Ct. 792. However the author may assign this expectancy and the assignment is valid against the world if the author is alive at the commencement of the renewal period. Fred Fisher Music Co. v. M. Witmark & Sons, 1943, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055; Miller Music Corp. v. Charles N. Daniels, Inc., supra, 80 S.Ct. 792, 794. In this case the renewal period began on April 24, 1950, and since all three authors were alive on that date, the case falls within the rule of Fred Fisher Music Co. v. M. Witmark & Sons, supra. The Fisher case indicated that an author might challenge the validity of his assignment of his expectancy in the renewal rights if the consideration for the assignment was inadequate. Judge Dimock held that the 1923 assignment was supported by adequate consideration and we adopt his excellent analysis of the question as applied to the facts of this case, 176 F.Supp. 605, 611-612. See also Gumm v. Jerry Vogel Music Co., 2 Cir., 1946, 158 F.2d 516; Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., 2 Cir., 1958, 255 F.2d 518, 521-522, certiorari denied 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69. It is clear that unlike the 1910 agreement in Rossiter v. Vogel, 2 Cir., 1943, 134 F.2d 908, the 1923 assignment before us conveyed renewal rights, and this court has repeatedly held that a power of attorney to apply for renewal rights will be" }, { "docid": "2101180", "title": "", "text": "unconscionable. Rossiter v. Vogel, 148 F.2d 292 (2d Cir. 1945). In the Fred Fisher case the Supreme Court specifically declined “to recognize that authors are congenitally irresponsible, * * * and therefore assignments made by them should not be upheld.” 318 U.S. at 656, 63 S.Ct. at 779. Mr. Justice Frankfurter, writing for the Court, noted: It is not for courts to judge whether the interests of authors clearly lie upon one side of this question rather than the other. If an author cannot make an effective assignment of his renewal, it may be worthless to him when he is most in need. Nobody would pay an author for something he cannot sell. We cannot draw a principle of law from the familiar stories of garret-poverty of some men of literary genius. Even if we could do so, we cannot say that such men would regard with favor a rule of law preventing them from realizing on their assets when they are most in need of funds. Nor can we be unmindful of the fact that authors have themselves devised means of safeguarding their interests. We do not have such assured knowledge about authorship, and particularly about song writing, or the psychology of gifted writers and composers, as to justify us as judges in importing into Congressional legislation a denial to authors of the freedom to dispose of their property possessed by others. While authors may have habits making for intermittent want, they may have no less a spirit of independence which would resent treatment of them as wards under guardianship of the law. 318 U.S. at 657, 63 S.Ct. at 779. Whether an assignment is construed to convey renewal rights as well as the original term of copyright is a question of fact which hinges on the intent of the parties; and the issue is to be decided from the attendant facts and circumstances. Rossiter v. Vogel, 134 F.2d 908 (2d Cir. 1943); Venus Music Corp. v. Mills Music, 261 F.2d 577 (2d Cir. 1958). Furthermore, “the circumstances justifying the transfer of the right of renewal must -be stronger" }, { "docid": "2101182", "title": "", "text": "than those justifying the transfer of the copyright * * Rossiter v. Vogel, 134 F.2d at 911; Shapiro, Bernstein & Co. v. Bryan, 123 F.2d 697, at 700 (2d Cir. 1941). It has been held that a general transfer by an author of the original copyright without mention of renewal rights conveys no interest in the renewal rights without proof of a contrary intention. G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469 (2d Cir.), cert. denied, 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641 (1951); Edward B. Marks Music Corp. v. Charles K. Harris Music Publishing Co., 255 F.2d 518 (2d Cir.), cert. denied, 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69 (1958). On the other hand, a trial court may infer from the acts of the parties and the surrounding circumstances an intention to convey renewal rights by general words or acts of assignment. Venus Music Corp. v. Mills Music, 261 F.2d 577 (2d Cir. 1958). An agreement to make royalty payments for an indefinite period on moneys accrued from the exploitation of copyrights and the acceptance of such payments are factors which may be considered in determining whether delivery of an artist’s product carried renewal rights. Rose v. Bourne, Inc., 176 F.Supp. 605, 611-612 (S.D.N.Y.1959), aff’d, 279 F.2d 79 (2d Cir.), cert. denied, 364 U.S. 880, 81 S.Ct. 170, 5 L.Ed.2d 103 (1960). It has been suggested [and it is claimed herein] that the most compelling rationale for the renewal protection is that the original assignment of rights by authors to publishers frequently is made “at a time when the value of the work is unknown or conjectural and the author (regardless of his business ability) is necessarily in a poor bargaining position.” Ringer, supra, at 521; Nimmer, supra, § 113 at 462. However, Nimmer has recognized that “[t]his reasoning is somewhat less persuasive when the original sale is on a percentage royalty basis so that the author automatically shares in whatever returns his work may bring.” Id. The purpose to give a second chance to an improvident author disappears when a substantial" }, { "docid": "20400608", "title": "", "text": "and all work ... have [sic] been and will be specially ordered or commissioned ... [as] a work made for hire.”). Third, the language is ambiguous as to whether it conveys renewal rights. The contract contains no explicit reference to renewal rights and most of the language merely tracks the 1976 Act’s definition of “work made for hire.” See 17 U.S.C. § 101 (defining term as “a work specially ordered or commissioned for use as a contribution to a collective work ... if the parties expressly agree in a written instrument signed by them”). If the contract only covers “work made for hire,” Marvel would be the statutory author, see id. § 201(b); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 743-44, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (citing 1909 Copyright Act § 62, 17 U.S.C. § 26 (repealed 1976)), and the “SUPPLIER” would not have any renewal rights that could be assigned to Marvel. Finally, Marvel relies heavily on the provision “granting] to MARVEL forever all rights of any kind and nature in and to the Work.” Cf Siegel, 508 F.2d at 913-14. In context, however, for the reasons discussed above, it is not clear whether this broad language applies to work performed by Friedrich some six years earlier. The broadness of the language would be of no help to Marvel if the Agreement were intended to cover only future work. Moreover, that sentence goes on to provide that “Marvel is the sole and exclusive copyright proprietor thereof having all rights of ownership therein,” which again suggests Marvel is the statutory author by virtue of the fact that the work was “made for hire.” Thus, the Agreement could reasonably be construed as a form work-for-hire contract having nothing to do with renewal rights. Accordingly, the language by itself fails to overcome the “strong presumption against the conveyance of renewal rights.” Corcovado Music Corp., 981 F.2d at 684. b. Extrinsic Evidence Because the Agreement is reasonably susceptible of more than one meaning, it is ambiguous and we next look to extrinsic evidence in the record to determine whether" }, { "docid": "133505", "title": "", "text": "and then assigned to Dixon and Epoch in instruments dated April 17, 1915. Relying mainly upon broad language found in each assignment, which purports to transfer to Epoch all of the rights in the copyright enjoyed by the assignor, DWG Corp., Epoch now argues that these assignments can be fairly construed to have conveyed to it the right to both the original term copyright and the renewal copyright in The Birth. We disagree. The construction of the assignments urged by Epoch is not one that a jury could fairly adopt, given the record in this case. While Epoch is correct that both assignments contain broad general language purporting to convey to Epoch all of the DWG Corp.’s interest in the film, that language is necessarily limited in its application by the specific description in each assignment of the interest conveyed, see Corbin, Contracts §§ 547, 549 (1960). In both assignments the interest is clearly identified as the first 28-year term only. The assignment of the unpublished work specifically describes the copyright as one “for the term of twenty-eight years.” The assignment of the published work conveyed “the copyright acquired by [DWG Corp.] by public presentation of the motion picture photoplay”; a clear reference to the initial 28-year term, since the renewal term is separate from the initial term and not acquired through publication with notice, see Fred Fisher Music Co. v. M. Witmark & Sons, supra. Moreover, there is no specific reference in either assignment to the renewal term. This deficiency has generally been held as a matter of law, absent contrary evidence, to preclude a holding that a transfer of renewal rights was intended. “[A] general transfer by an author of the original copyright without mention of renewal rights conveys no interest in the renewal rights without proof of a contrary intention.” Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., supra, 255 F.2d at 521; see, e. g., G. Ricordi & Co. v. Paramount Pictures, Inc., supra, 189 F.2d at 471. Epoch points to no evidence of a different intention in the present case. While" }, { "docid": "133517", "title": "", "text": "or analysis of the factors discussed in the text, which distinguish original and renewal applications. Moreover, it cites as authority for according such weight to renewal certificates only decisions which considered original copyright certificates. Furthermore, this decision was rendered in a case still pending in the Southern District of New York and has not yet been reviewed by this court. . In the construction of copyright assignments, as with contracts and other writings, the meaning to be placed on the words of the assignment ultimately turns upon the intention of the parties to the agreement. Venus Music Corp. v. Mills Music, Inc., 261 F.2d 577 (2d Cir. 1958); Rossiter v. Vogel, 134 F.2d 908 (2d Cir. 1943). That intention is to be determined from the evidence submitted to the court, including the agreement itself, statements and actions of the parties contemporaneous with and following the agreement, oral testimony, affidavits, depositions, and other equally competent evidence. The only evidence as to the intent of the parties introduced in this case was the agreements themselves. . A further limitation on the interest conveyed by the copyright assignments from DWG Corp. to Epoch is Epoch’s failure to introduce any evidence to prove that DWG Corp. in fact owned anything more than the initial 28-year copyright term. As explained in the text, since there was no proof that DWG Corp. had any right to apply for the copyright in its own name, it must have obtained the original copyright on the film with Griffith’s permission as the assignee or licensee of Griffith’s common law copyright. Such an assignment by the author of a work conveys only initial term copyright, reserving the renewal for the author himself. See Austin v. Steiner, 207 F.Supp. 776 (N.D.Ill.1962); 2 M. Nimmer, Copyright § 114.3, at 469 (1974). . Conceivable examples of such works include (1) writings by members of a religious order, although not its employees, have no personal right in the work, and (2) writings for the corporation by a corporate official or major stockholder. Ringer, supra, at 137 n. 215." }, { "docid": "1228439", "title": "", "text": "v. Charles K. Harris Music Publishing Co., 2 Cir., 1958, 255 F.2d 518, certiorari denied 1958, 79 S.Ct. 51, plaintiff argues that we must find “as a matter of law” that Lyman’s 1936 assignment to defendant did not include the renewal right. We do not believe that Rossiter and Marks compel such a holding. Both cases make it clear that general words of assignment can include renewal rights if the parties had so intended. Whether the evidence discloses such an intent is to be determined by the trier of the facts. Rossiter was an appeal from an order granting plaintiff’s motion for summary judgment. Plaintiff there relied on two assignments, one in 1910 employing general words of assignment, the other in 1926 specifically including renewal rights. In reversing the lower court’s ruling, this court held that the evidence and circumstances did not support a finding that the 1910 agreement was intended to transfer renewal rights, and that, at the very least, an issue of fact was presented. In Marks this court sustained the district court’s determination that intent to convey renewal rights had not been proven. In neither case did this court hold that a trial court may not infer from the surrounding circumstances an intention to convey renewal rights by general words of assignment. Further, in both Rossiter and Marks the assignor still held his original copyright as well as his renewal right at the time of making the conveyance in question. In the instant case, Lyman had conveyed away his copyright to Watterson in 1926 and defendant owned the copyright at the time of the 1936 assignment. It is clear, therefore, that the 1936 assignment could not possibly have been intended to convey the original copyright which had already been assigned. Under these circumstances, we cannot say that the trial court’s finding that the renewal right was what was being bargained for and assigned in 1936 is “clearly erroneous.” While the fact that defendant discontinued royalty payments to Lyman between 1936 and 1947 may constitute some evidence to rebut this finding, we do not believe that it is" }, { "docid": "3959608", "title": "", "text": "reassignment of rights other than serial rights from magazine; magazine then assigned motion picture rights to third parties; third parties protected by recordation statute even though no assignment executed); Brady v. Reliance Motion Picture Corp., 232 F. 259, 261-262 (S.D.N.Y.1916) (subsequent purchasers not protected by statute if actually knew of equitable rights in author or if charged with knowledge because of existing facts within their knowledge); Caterini, Contributions to Periodicals, 10 ASCAP Copyright Law Symposium 321, 349 (1959). There are other indications in the cases that the contractual right to an assignment cannot defeat a subsequent bona fide purchaser for a valuable consideration. See Rossiter v. Vogel, 134 F.2d 908 (2nd Cir. 1943). Cf. Gibson v. Cook, 10 Fed.Cas. p. 314, Case No. 5,393 (C.C.N.D.N.Y.1850). As to the requirement of valuable consideration, see Venus Music Corporation v. Mills Music, Inc., 261 F.2d 577, 579 (2nd Cir. 1958) (consideration of $1 is not value); Rossiter v. Vogel, 134 F.2d at 911-912. See generally Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., 255 F.2d 518 (2nd Cir.), cert. denied, 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69 (1958); Latman, “The Recordation of Copyright Assignments and Licenses” (Study No. 19), in Studies On Copyright 761 (1963). . The Court, impresses by the credibility of Mr. Abelman’s testimony, accepts it completely. . Section 43(a) of the Lanliam Act, 15 U.S.C. § 1125(a) (1964), provides: “§ 1125. False designations of origin and false descriptions for-hidden (a) Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be" }, { "docid": "23533835", "title": "", "text": "therefore could have been transferred only if the parties had executed the Exhibit A agreements — the only agreement specifically transferring the renewal copyrights. Because the publishing agreements made no reference to the renewal copyrights and the Exhibit A agreements were never executed, Appellants contend that Sony could not have received the renewal copyrights for Miller’s 1958-1963 songs. (Appellants’ Br. 17-18.) Appellants are incorrect. First, the language in the Exhibit A agreement is sufficient to convey the renewal-copyright interests because the language evinces a clear intent by Miller to transfer to Tree, and later to Sony, the renewal copyrights in the 1958-1963 songs. The Exhibit A agreement specifically states that Miller authorizes Sony to renew the copyrights in his songs: “The Composers hereby authorize and empower the Publisher to renew, pursuant to law, ... the copyright of the said musical composition ... and deliver ... a formal assignment of each renewal copyright to [Tree].... ” The express use of the term “renew” here evinces the intent to convey the renewal interest; this is particularly true because even more generic terms, such as “forever” and “hereafter,” have sufficed to convey an interest in the renewal copyrights. See, e.g., P.C. Films Corp., 138 F.3d at 457 (noting that use of the word “perpetual” conveys renewal rights); Corcovado, 981 F.2d at 685 (explaining that use of the word “forever” or “hereafter” is sufficient to convey renewal rights); see also Hayes v. Carlin Am., Inc., 168 F.Supp.2d 154, 157 (S.D.N.Y.2001) (“Use of the particular word ‘renewal’ is not necessary to transfer renewal rights.”). Second, the 1969 agreement successfully incorporated into the parties’ prior publishing agreements the language assigning to Tree the renewal copyrights in Miller’s songs. The Appellants, however, contend that the language in the Exhibit A agreement, granting Sony the right to the renewal copyrights, was not incorporated into the publishing agreements because the 1969 agreement incorporated the provision in the Exhibit A agreement relating only to royalties and not the provision relating to renewal copyrights. (Appellants’ Br. 17-18.) The Appellants’ argument hinges on language in the 1969 agreement stating that “the signing" }, { "docid": "23044167", "title": "", "text": "(1965); U. S. Copy-Fight Law Revision Study No.. 31, 121-122 (1960). . Appellants’ reliance upon the cases of Venus Music Corporation v. Mills Music, Inc., 261 F.2d 577 (2 Cir. 1958), and Rohauer v. Friedman, 306 F.2d 933 (9 Cir. 1962), in support of their claim that \"Sou-mans assigned renewal rights without mentioning them in its September 10, 1931 assignment to Miller, is misplaced. Judge Kaufman’s opinion in Venus- is a perceptive, articulate confirmation of the views expressed in this dissent, for there the authors’ original 1926 assignment of the copyright in the song to Watterson, without mentioning renewal rights, was assumed not to have transferred them; the subsequent 1931 assignment by Watterson of its rights acquired in 1926 from the authors to defendant, expressly including renewal rights, was found not to have transferred renewal rights because Watterson was unable to convey them; the 1936 bill of sale from the composer, Lyman, to defendant of all his “right, title and interest” in the song was held, “under these circumstances”, to convey his renewal rights, although not expressly mentioned, since defendant (unlike Miller in the instant case on September 10, 1931) already owned the basic copyright which the composers had conveyed to Watterson in 1926 and Watterson had conveyed to defendant in 1931, hence “the 1936 assignment could not possibly have been intended to convey the original copyright which had already been assigned” — thus distinguishing the case from Rossiter v. Vogel, supra, and Edward B. Marks Music Corp. v. Charles K. Harris Music Publishing Co., 255 F.2d 518 (2 Cir. 1958), cert. denied, 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69 (1958), in both of which cases “the assignor still held his original copyright as well as his renewal right at the time of making the conveyance in question.” Venus Music Corporation v. Mills Music, Inc., supra at 579. This Court in Venus noted that in Rossiter we sustained, as a transfer of renewal rights, the 1926 assignment of “all rights, title and interest in the song and all copyright renewals thereof” as against the 1910 general words of" } ]

[ { "docid": "21093117", "title": "", "text": "different hypothetical warning (risks to children). Ford’s response to Fisher’s motion cited the NHTSA website’s caution regarding the use of such interpretation letters: “In attempting to use these interpretations to resolve a question, please be aware that they represent the views of the Chief Counsel based on the facts of individual cases at the time the letter was written .... Further, the Agency’s standards and regulations change from year to year, and past interpretations may no longer be applicable.” The district court’s implicit rejection of the argument that this letter should be given retroactive legal effect did not involve a clear error of law, and hence there was no abuse of discretion. The denial of the motion for a new trial should be affirmed. C Fisher complains that the district court’s jury instructions incorrectly stated Ohio law, and that it erred in denying a requested instruction. “The standard on appeal for a court’s charge to the jury is whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury.” United States v. Martin, 740 F.2d 1352, 1361 (6th Cir.1984). “Because the correctness of jury instructions is a question of law, we review de novo a district court’s jury instructions.” Jones v. Federated Financial Reserve Corp., 144 F.3d 961, 966 (6th Cir.1998). A district court’s refusal to give a specific requested jury instruction, however, is reviewed for abuse of discretion. See United States v. Frost, 914 F.2d 756, 764 (6th Cir.1990). Contrary to the statement made by Brief of Defendant-Appel-lee, at 53, there is no support in Jones, 144 F.3d at 966, for the proposition that “[a] district court’s failure to give a requested jury instruction is subject to de novo review.” Fisher complains about the district court’s jury instructions in three respects. First, the court limited its instruction regarding the claim of inadequate warning to comport with its earlier finding that additional labels could only contain the same language as mandated on the sun visor labels. But Fisher’s argument that state law on inadequate warning could require a reasonable manufacturer to do" } ]

[ { "docid": "16307044", "title": "", "text": "OPINION BOYCE F. MARTIN, JR., Circuit Judge. H.C. Smith Investments, L.L.C. hired Raytheon Aircraft Services, Inc. to inspect a jet airplane that it was considering purchasing. Approximately one year after the inspection and subsequent purchase, Smith Investments discovered that Ray-theon failed to detect that the airplane had extensive corrosion damage, which substantially diminished its value and safety. Smith Investments filed suit against Ray-theon, alleging negligent inspection, negligent supply of information, and breach of contract with respect to the inspection. A jury found in favor of Smith Investments on the negligent-inspection and negligent-supply-of-information claims, and in favor of Raytheon on the breach-of-contract claim. The district court awarded Smith Investments approximately $1.9 million in damages. Raytheon appeals the district-court judgment, arguing that the court erred in granting Smith Investments’ Rule 50 motion and in instructing the jury on the negligent-supply-of-information claim. Smith Investments cross-appeals, arguing that the district court erred in denying its Rule 50 motion and in instructing the jury that it could allocate to Smith Investments the fault of its agent, Travel Consultants Aviation. We find no error in any of the judgments of the district court, and we affirm. I. In early 1997, Smith Investments hired Travel Consultants Aviation to assist it in its endeavor to locate and purchase a second-hand airplane for personal and charter use. Travel Consultants Aviation eventually located a 1969 Eawker-Siddeley jet airplane in Florida at the Aero Toy Store, which had purchased the airplane from Outboard Marine Company. On July 10, 1997, Smith Investments submitted a conditional offer to purchase the airplane for $2.2 million, subject to the airplane being inspected by Raytheon at its Ft. Lauder-dale, Florida, location. Shortly thereafter, Tony Zeka, a Ray-theon mechanic, inspected the airplane and then faxed a handwritten, nine-page letter to Lloyd Huth, a Travel Consultants Aviation employee, that set forth his findings. The letter stated that the airplane’s logbooks were not up to Federal Aviation Regulations “Part 135” standards (but that they could be with additional work) and listed the “squawks” that Mr. Zeka discovered while conducting a physical inspection of the airplane. Mr. Huth also stated" }, { "docid": "16307052", "title": "", "text": "court’s grant of a judgment as a matter of law. Gray, 263 F.3d at 598. As a federal court sitting in diversity, we apply the standard for a motion for judgment as a matter of law used in Florida. See Potti, 938 F.2d at 645. Judgment as a matter of law is proper “only when the evidence and all inferences of fact, construed most strictly in favor of the non-moving party, cannot support in the minds of jurors any reasonable difference as to any material fact or inference.” Stewart & Stevenson Servs., Inc. v. Westchester Fire Ins. Co., 804 So.2d 584, 588 (Fla.App.2002). Raytheon bore the burden of pleading comparative fault as an affirmative defense. See Fla. Stat. Ann. § 768.81(3)(e). This required Ray- theon to demonstrate to the court “that there [was] legally sufficient evidence in the record from which the jury [could] find that [Travel Consultants Aviation, the non-party] was at fault.” R. Bell Tel. & Tel. Co. v. Florida Dep’t of Transp., 668 So.2d 1039, 1041 (Fla.App.1996). Smith Investments moved for judgment as a matter of law and argued that Raytheon failed to demonstrate that legally sufficient evidence existed to support a finding that Travel Consultants Aviation was at fault. Specifically, Smith Investments argued that in Raytheon’s attempt to ascribe negligence to Travel Consultants Aviation as a non-party, Raytheon failed to articulate an applicable standard of ordinary care or to establish that Travel Consultants Aviation’s conduct fell short of the standard. The district court granted judgment as a matter of law on the grounds that Travel Consultants Aviation was an agent of Smith Investments rather than a non-party. Instructing the jury, the district court stated: An agency relationship existed between the plaintiff [Smith Investments] and Travel Consultants [Aviation].... An agent is a person who was employed to act for another whose actions are controlled by the employer or subject to the employer’s right ... to control. The plaintiff is responsible for the negligence of TCA, if such negligence occurred while TCA was performing services which it was employed to perform or while TCA was acting at least" }, { "docid": "16307062", "title": "", "text": "how Travel Consultants operated, he also testified that the relationship between his company and Travel Consultants Aviation was controlled by the Aircraft Acquisition Agreement, which identified Travel Consultants Aviation as Smith Investments’ agent. Thus, even under this more stringent standard, we are convinced that an agency relationship existed: Smith Investments maintained a right to control whether Travel Consultants Aviation could negotiate the purchase of an airplane and, if so, to direct Travel Consultants Aviation in that purchase. As the principal for Travel Consultants Aviation, Smith Investments is liable for the work Travel Consultants Aviation conducted within the scope of its role as agent. See Life Ins. Co. of N. Am. v. Del Aguila, 417 So.2d 651 (Fla.1982) (Florida follows the basic doctrine of agency law wherein a principal is liable for the tortious conduct of his agent, even though not authorized, if the agent was acting within the scope of his employment or his apparent authority). As stated in the “Aircraft Acquisition Agreement,” the inspection of the airplane was within the scope of Travel Consultants Aviation’s role as Smith Investments’ agent. Therefore, we hold that Travel Consultants Aviation was an agent of Smith Investments and, thus, the district court properly attributed the fault, if any, of Travel Consultants Aviation to Smith Investments. VII. On cross-appeal, Smith Investments also argues that the district court erred in denying its motion for judgment as a matter of law on Raytheon’s affirmative defense of comparative fault attributable to Travel Consultants Aviation. We review the denial of a motion for judgment as a matter of law de novo. Gray, 263 F.3d at 598. Under Florida law, judgment as a matter of law is proper “only when the evidence and all inferences of fact, construed most strictly in favor of the non-moving party, cannot support in the minds of jurors any reasonable difference as to any material fact or inference.” Stewart & Stevenson Servs., Inc., 804 So.2d at 588. According to Smith Investments, Ray-theon failed to establish an applicable standard of ordinary care for Travel Consultants Aviation and its breach of this standard. Smith Investments contends" }, { "docid": "16307063", "title": "", "text": "Aviation’s role as Smith Investments’ agent. Therefore, we hold that Travel Consultants Aviation was an agent of Smith Investments and, thus, the district court properly attributed the fault, if any, of Travel Consultants Aviation to Smith Investments. VII. On cross-appeal, Smith Investments also argues that the district court erred in denying its motion for judgment as a matter of law on Raytheon’s affirmative defense of comparative fault attributable to Travel Consultants Aviation. We review the denial of a motion for judgment as a matter of law de novo. Gray, 263 F.3d at 598. Under Florida law, judgment as a matter of law is proper “only when the evidence and all inferences of fact, construed most strictly in favor of the non-moving party, cannot support in the minds of jurors any reasonable difference as to any material fact or inference.” Stewart & Stevenson Servs., Inc., 804 So.2d at 588. According to Smith Investments, Ray-theon failed to establish an applicable standard of ordinary care for Travel Consultants Aviation and its breach of this standard. Smith Investments contends that this amounts to reversible error. Raytheon counters this claim, stating that it established a standard of care and the breach of this standard through the testimony of Robert Francis Stanford, an expert witness in the field of advising airplane purchasers. Mr. Stanford, whose line of work is similar to the services provided by Travel Consultants Aviation, testified about airplane inspections and how he guards his clients’ interests during the airplane-acquisition process. We hold that the district court committed no error in denying the motion for judgment as a matter of law and that Raytheon laid a proper foundation for a comparative-negligence affirmative defense. Furthermore, because an agency relationship existed between Smith Investments and Travel Consultants Aviation, we also hold that the jury permissibly apportioned a percentage of fault to Smith Investments, either because of negligence on its own part or for that of its agent. See Del Aguila, 417 So.2d 651. Smith Investments pleaded that Travel Consultants Aviation was its agent, and documentary evidence and the conduct of the two companies proved an agency" }, { "docid": "16307048", "title": "", "text": "this task. Smith Investments contends that Mr. Zeka failed to disclose that the Ft. Lauderdale service center was not authorized by Raytheon for Hawker inspections and,-therefore, that its employees were unaware of the inspection criteria in Raytheon’s Hawker Evaluation Guide, which includes inspection for corrosion. Smith Investments also alleges that the invoice submitted by Raytheon for its work, which states “evaluated aircraft,” implies that Raytheon conducted a comprehensive inspection of the airplane. II. In 2000, Smith Investments filed its initial complaint against Raytheon and alleged breach-of-contract and negligent-inspection claims. In 2002, Smith Investments amended its complaint for the second time and added a negligent-supply-of-information claim against Ray-theon. Raytheon answered the complaint and pleaded thirteen affirmative defenses, including comparative fault of Smith Investments’ agent, Travel Consultants Aviation. Outboard Marine Company, the original owner of the airplane, was named at the outset of the suit as a co-defendant. The district court granted Outboard Marine’s motion to dismiss the fraudulent-misrepresentation and negligent-misrepresentation claims alleged by Smith Investments. Outboard Marine also moved to dismiss the third claim against it, a breach-of-express-warranty claim. The district court denied this motion pending either a stay or termination of Outboard Marine’s Chapter 11 bankruptcy proceeding in the Northern District of Illinois. The case was tried before a jury in 2002. At the close of Raytheon’s defense, Smith Investments moved under Federal Rule of Civil Procedure 50 for judgment as a matter of law on Raytheon’s affirmative defense of Travel Consultant Aviation’s comparative fault as a non-party. The district court granted the motion in favor of Smith Investments, precluding the jury from allocating fault to Smith Investments for any negligence of Travel Consultants Aviation as a non-party to the suit. The next day, Smith Investments again moved under Rule 50 for judgment as a matter of law on Raytheon’s affirmative defense of Travel Consultants Aviation’s comparative fault as an agent of Smith Investments. The district court denied this motion and stated: “The unstated premise of yesterday’s ruling as to [Travel Consultants Aviation] was that TCA did not occupy the position of a non-party because TCA was acting as an" }, { "docid": "16307047", "title": "", "text": "Heuberger, Raytheon’s Ft. Lauderdale service-center manager, stated in deposition that no Raytheon employee would have agreed to conduct a “pre-purchase” inspection because of the vagueness of the term. Raytheon will inspect airplanes, Mr. Heuberger stated, but only for requests narrower or more specific than a “pre-purchase” inspection. In addition, according to John C. Willis, President of Raytheon Aircraft Services, the scope of work requested was limited to the “Part 135” inspection, which involved logbook research and a pre-flight check of the engine and oil. Mr. Willis also stated that Ray-theon stopped inspecting the airplane after Mr. Huth instructed Raytheon that Smith Investments would not be buying the airplane based on the “Part 135” compliance issue that Mr. Zeka had reported earlier to Mr. Huth. Mr. Willis added that the airplane was removed from the Raytheon service center the day after Mr. Huth relayed this message to Raytheon. According to Smith Investments, Travel Consultants Aviation directed Raytheon to conduct a comprehensive “pre-purchase” aircraft evaluation and Mr. Zeka represented to Travel Consultants Aviation that he would complete this task. Smith Investments contends that Mr. Zeka failed to disclose that the Ft. Lauderdale service center was not authorized by Raytheon for Hawker inspections and,-therefore, that its employees were unaware of the inspection criteria in Raytheon’s Hawker Evaluation Guide, which includes inspection for corrosion. Smith Investments also alleges that the invoice submitted by Raytheon for its work, which states “evaluated aircraft,” implies that Raytheon conducted a comprehensive inspection of the airplane. II. In 2000, Smith Investments filed its initial complaint against Raytheon and alleged breach-of-contract and negligent-inspection claims. In 2002, Smith Investments amended its complaint for the second time and added a negligent-supply-of-information claim against Ray-theon. Raytheon answered the complaint and pleaded thirteen affirmative defenses, including comparative fault of Smith Investments’ agent, Travel Consultants Aviation. Outboard Marine Company, the original owner of the airplane, was named at the outset of the suit as a co-defendant. The district court granted Outboard Marine’s motion to dismiss the fraudulent-misrepresentation and negligent-misrepresentation claims alleged by Smith Investments. Outboard Marine also moved to dismiss the third claim against it," }, { "docid": "16307055", "title": "", "text": "agent would have affected the outcome of this case or would “support in the minds of jurors any reasonable difference as to any material fact or inference.” Stewart & Stevenson Servs., 804 So.2d at 588. Therefore, we affirm the district court’s grant of the motion for judgment as a matter of law. V. The second issue Raytheon argues on appeal is that the district court erroneously instructed the jury regarding Raytheon’s liability for the tort of negligent supply of information. This tort imposes liability on one who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others who justifiably rely on this information in their business transactions if the supplier fails to exercise reasonable care or competence in communicating the information. Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 336 (Fla.1997). Raytheon contends that liability for this tort requires an affirmative statement, but that, at most, Raytheon made an omission for which liability cannot be imposed. We review de novo whether the district court’s jury instructions were proper. Fisher, 224 F.3d at 576. We review for abuse of discretion whether the district court properly refused to give a specific jury instruction. Ibid. The district court instructed the jury on the negligent-supply-of-information claim as follows: The claim of the plaintiff [Smith Investments] is that there was information negligently supplied by the defendant [Ray-theon], or negligent supply of information. The following instructions relate to the plaintiffs claim of negligent supply of information. Let me begin by explaining the plaintiffs negligent supply of information claim by informing you of the specific elements or items of proof that the plaintiff is required to prove by a preponderance of the evidence. And here there are eight of them. Not three or four. First, that the defendant, in fact, supplied information to the plaintiff to use in making a business decision. Secondly, that the defendant supplied the information in the ordinary course of business as an aircraft service station. Third, that the defendant intended to" }, { "docid": "16307060", "title": "", "text": "relied upon. Thus, we hold that the affirmative misstatements made by Mr. Zeka to Mr. Huth about the airplane’s condition are sufficient to support § 552 liability. Therefore, we find no error in the district court’s jury instruction. VI. On cross-appeal, Smith Investments argues that the district court erroneously instructed the jury that Travel Consultants Aviation was its agent and, therefore, that the jury erroneously attributed Travel Consultants Aviation’s liability to Smith Investments. According to Smith Investments, Travel Consultants Aviation was an independent contractor for whom no liability can be attributed to Smith Investments. Raytheon contends that this argument has no merit because Travel Consultants Aviation was an agent of Smith Investments and that attributing its liability to Smith Investments comports with the fundamental doctrines of agency law. The propriety of a jury instruction is reviewed de novo. Fisher, 224 F.3d at 576. The refusal to give a jury instruction is reviewed for abuse of discretion. Ibid. We are unpersuaded by Smith Investments’ argument and hold that an agency relationship existed. First, designating Travel Consultants Aviation as an agent of Smith Investments established the requisite standing for Smith Investments to pursue its breach of contract claim against Raytheon. Indeed, Smith Investments explicitly refers to Travel Consultants Aviation as its agent in (1) the “Aircraft Acquisition Agreement,” signed by both Smith Investments and Travel Consultants Aviation, in (2) its Second Amended Complaint and Jury Demand, and in (3) its Reply Brief Supporting Plaintiffs Motion for Partial Summary Judgment. In addition, this agency relationship was the “only judicial notice of the whole trial,” and no party objected to this notice. We realize, however, that use of the term “agent” is not legally determinative. Nazworth v. Swire Florida, Inc., 486 So.2d 637, 638 (Fla.App.1986). Indeed, “[t]he standard for determining whether an agent is an independent contractor is the degree of control exercised by the employer or owner over the agent. More particularly, it is the right of control, and not actual control, which determines the relationship between the parties.” Ibid, (internal citations omitted). Although Mr. Smith testified that he personally did not control" }, { "docid": "19864613", "title": "", "text": "moved for judgment as a matter of law, again arguing that Andler was a licensee and that the hole was open and obvious, which the court denied. The jury awarded Andler $10,000, which did not include any recovery for lost earning capacity. Andler timely appealed the exclusion of Selby’s testimony, contending that his calculations of lost earning capacity were not unrealistically speculative. Clear Channel cross-appealed the denial of its motion for judgment as a matter of law, arguing that the district court erred in finding both that Andler was an invitee rather than a licensee and that the open-and-obvious doctrine did not bar her claim. II. ANALYSIS A. Standard of Review We review a district court’s evidentiary rulings, including the decision to exclude expert testimony, for an abuse of discretion. Pride v. BIC Corp., 218 F.3d 566, 575 (6th Cir.2000) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). We review de novo the denial of a motion for judgment as a matter of law. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir.2007). Such a motion should “be granted only if in viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion, in favor of the moving party.” Id. (quoting Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir.2001)). B. Clear Channel’s Cross-Appeal 1. Licensee vs. Invitee Under Ohio premises liability law, a landowner’s duty to someone who has come onto his land depends on whether the person is a trespasser, licensee, or invitee. See, e.g., Gladon v. Greater Cleveland Reg’l Transit Auth., 75 Ohio St.3d 312, 662 N.E.2d 287, 291 (1996). With invitees, the landowner has a duty to exercise ordinary care by maintaining the premises in a safe condition. Provencher v. Ohio Dep’t of Transp., 49 Ohio St.3d 265, 551 N.E.2d 1257, 1258 (1990). With licensees, the landowner need only refrain from “wantonly or willfully causing injury” and is not liable" }, { "docid": "16307054", "title": "", "text": "in part because of a desire to serve the plaintiff and was doing something that was reasonably incidental to its employment or something the doing of which was reasonably foreseeable and to be expected of persons similarly employed. The effect of this instruction permitted the jury to allocate any fault of Travel Consultants Aviation directly to Smith Investments as an agent rather than to Travel Consultants Aviation as a non-party. We find no error in the district court’s grant of the motion for judgment as a matter of law. Although Florida law permits a jury to apportion comparative fault to a non-party, see Fla. Stat. Ann. § 768.81(3)(e) and Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) (overruled on other grounds), a third party to whom fault may be attributed as an agent should not also have fault attributed to it as a non-party in the same suit. That would be duplicative. Furthermore, we are unpersuaded that permitting the jury to apportion any fault of Travel Consultants Aviation as a non-party rather than as an agent would have affected the outcome of this case or would “support in the minds of jurors any reasonable difference as to any material fact or inference.” Stewart & Stevenson Servs., 804 So.2d at 588. Therefore, we affirm the district court’s grant of the motion for judgment as a matter of law. V. The second issue Raytheon argues on appeal is that the district court erroneously instructed the jury regarding Raytheon’s liability for the tort of negligent supply of information. This tort imposes liability on one who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others who justifiably rely on this information in their business transactions if the supplier fails to exercise reasonable care or competence in communicating the information. Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 336 (Fla.1997). Raytheon contends that liability for this tort requires an affirmative statement, but that, at most, Raytheon made an omission for which liability cannot" }, { "docid": "16307053", "title": "", "text": "as a matter of law and argued that Raytheon failed to demonstrate that legally sufficient evidence existed to support a finding that Travel Consultants Aviation was at fault. Specifically, Smith Investments argued that in Raytheon’s attempt to ascribe negligence to Travel Consultants Aviation as a non-party, Raytheon failed to articulate an applicable standard of ordinary care or to establish that Travel Consultants Aviation’s conduct fell short of the standard. The district court granted judgment as a matter of law on the grounds that Travel Consultants Aviation was an agent of Smith Investments rather than a non-party. Instructing the jury, the district court stated: An agency relationship existed between the plaintiff [Smith Investments] and Travel Consultants [Aviation].... An agent is a person who was employed to act for another whose actions are controlled by the employer or subject to the employer’s right ... to control. The plaintiff is responsible for the negligence of TCA, if such negligence occurred while TCA was performing services which it was employed to perform or while TCA was acting at least in part because of a desire to serve the plaintiff and was doing something that was reasonably incidental to its employment or something the doing of which was reasonably foreseeable and to be expected of persons similarly employed. The effect of this instruction permitted the jury to allocate any fault of Travel Consultants Aviation directly to Smith Investments as an agent rather than to Travel Consultants Aviation as a non-party. We find no error in the district court’s grant of the motion for judgment as a matter of law. Although Florida law permits a jury to apportion comparative fault to a non-party, see Fla. Stat. Ann. § 768.81(3)(e) and Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) (overruled on other grounds), a third party to whom fault may be attributed as an agent should not also have fault attributed to it as a non-party in the same suit. That would be duplicative. Furthermore, we are unpersuaded that permitting the jury to apportion any fault of Travel Consultants Aviation as a non-party rather than as an" }, { "docid": "16307064", "title": "", "text": "that this amounts to reversible error. Raytheon counters this claim, stating that it established a standard of care and the breach of this standard through the testimony of Robert Francis Stanford, an expert witness in the field of advising airplane purchasers. Mr. Stanford, whose line of work is similar to the services provided by Travel Consultants Aviation, testified about airplane inspections and how he guards his clients’ interests during the airplane-acquisition process. We hold that the district court committed no error in denying the motion for judgment as a matter of law and that Raytheon laid a proper foundation for a comparative-negligence affirmative defense. Furthermore, because an agency relationship existed between Smith Investments and Travel Consultants Aviation, we also hold that the jury permissibly apportioned a percentage of fault to Smith Investments, either because of negligence on its own part or for that of its agent. See Del Aguila, 417 So.2d 651. Smith Investments pleaded that Travel Consultants Aviation was its agent, and documentary evidence and the conduct of the two companies proved an agency relationship existed. We therefore find that Raytheon established an applicable standard of ordinary care for an agent in this context and a breach of this standard. We also find no merit to Smith Investments’ allegation that Travel Consultants Aviation was not its agent. The district court’s denial of the motion for judgment as a matter of law is affirmed. VIII. Based on the foregoing, we hereby affirm the district court’s judgments in their entirety. . \"Part 135” refers to the section of the Federal Aviation Regulations that governs logbook-inspection standards for charter airplanes. . \"Squawks” refer to problems with the airplane that require repair or replacement." }, { "docid": "16307050", "title": "", "text": "agent of plaintiff. This clarification is obvious and the jury should be allowed to consider TCA’s negligence as the negligence of a party.” The jury returned a verdict in favor of Smith Investments on the negligent-inspection and negligent-supply-of-information claim and in favor of Raytheon on the breach-of-contract claim. The jury allocated 80% of the comparative fault to Ray-theon and 20% to Travel Consultants Aviation as Smith Investments’ agent. The district court awarded approximately $1.9 million in damages to Smith Investments. On appeal, Raytheon argues that the district court erred in granting Smith Investments’ Rule 50 motion as to Travel Consultants Aviation’s status as a non-party and in instructing the jury on the negligent-supply-of-information claim. Smith Investments cross-appeals and argues that the district court erred in denying its Rule 50 motion as to Travel Consultants Aviation’s status as an agent and in instructing the jury that it could allocate to Smith Investments the fault of its agent. III. We review the denial of a Rule 50 motion de novo. Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir.2001). As a federal court sitting-in diversity, we apply the standard for a motion for judgment as a matter of law used in Florida, the state law that governs this action. See Potti v. Duramed Pharm., Inc., 938 F.2d 641, 645 (6th Cir.1991). As to the allegations of improper jury instructions, we review those claims de novo as well. Fisher v. Ford Motor Co., 224 F.3d 570, 576 (6th Cir.2000). A district court’s refusal to give a jury instruction is reviewed for abuse of discretion. Ibid. IV. The first issue Raytheon alleges on appeal is that the district court erred in granting Smith Investments’ motion for judgment as a matter of law on Raytheon’s affirmative defense of comparative fault. Specifically, Raytheon pleaded that Travel Consultants Aviation, Smith Investments’ purchasing agent, was comparatively liable for the damages. By granting this motion in favor of Smith Investments, the district court precluded the jury from directly apportioning any negligence to Travel Consultants Aviation in its own capacity. We review de novo a district" }, { "docid": "16307049", "title": "", "text": "a breach-of-express-warranty claim. The district court denied this motion pending either a stay or termination of Outboard Marine’s Chapter 11 bankruptcy proceeding in the Northern District of Illinois. The case was tried before a jury in 2002. At the close of Raytheon’s defense, Smith Investments moved under Federal Rule of Civil Procedure 50 for judgment as a matter of law on Raytheon’s affirmative defense of Travel Consultant Aviation’s comparative fault as a non-party. The district court granted the motion in favor of Smith Investments, precluding the jury from allocating fault to Smith Investments for any negligence of Travel Consultants Aviation as a non-party to the suit. The next day, Smith Investments again moved under Rule 50 for judgment as a matter of law on Raytheon’s affirmative defense of Travel Consultants Aviation’s comparative fault as an agent of Smith Investments. The district court denied this motion and stated: “The unstated premise of yesterday’s ruling as to [Travel Consultants Aviation] was that TCA did not occupy the position of a non-party because TCA was acting as an agent of plaintiff. This clarification is obvious and the jury should be allowed to consider TCA’s negligence as the negligence of a party.” The jury returned a verdict in favor of Smith Investments on the negligent-inspection and negligent-supply-of-information claim and in favor of Raytheon on the breach-of-contract claim. The jury allocated 80% of the comparative fault to Ray-theon and 20% to Travel Consultants Aviation as Smith Investments’ agent. The district court awarded approximately $1.9 million in damages to Smith Investments. On appeal, Raytheon argues that the district court erred in granting Smith Investments’ Rule 50 motion as to Travel Consultants Aviation’s status as a non-party and in instructing the jury on the negligent-supply-of-information claim. Smith Investments cross-appeals and argues that the district court erred in denying its Rule 50 motion as to Travel Consultants Aviation’s status as an agent and in instructing the jury that it could allocate to Smith Investments the fault of its agent. III. We review the denial of a Rule 50 motion de novo. Gray v. Toshiba Am. Consumer Prods., Inc.," }, { "docid": "16307051", "title": "", "text": "263 F.3d 595, 598 (6th Cir.2001). As a federal court sitting-in diversity, we apply the standard for a motion for judgment as a matter of law used in Florida, the state law that governs this action. See Potti v. Duramed Pharm., Inc., 938 F.2d 641, 645 (6th Cir.1991). As to the allegations of improper jury instructions, we review those claims de novo as well. Fisher v. Ford Motor Co., 224 F.3d 570, 576 (6th Cir.2000). A district court’s refusal to give a jury instruction is reviewed for abuse of discretion. Ibid. IV. The first issue Raytheon alleges on appeal is that the district court erred in granting Smith Investments’ motion for judgment as a matter of law on Raytheon’s affirmative defense of comparative fault. Specifically, Raytheon pleaded that Travel Consultants Aviation, Smith Investments’ purchasing agent, was comparatively liable for the damages. By granting this motion in favor of Smith Investments, the district court precluded the jury from directly apportioning any negligence to Travel Consultants Aviation in its own capacity. We review de novo a district court’s grant of a judgment as a matter of law. Gray, 263 F.3d at 598. As a federal court sitting in diversity, we apply the standard for a motion for judgment as a matter of law used in Florida. See Potti, 938 F.2d at 645. Judgment as a matter of law is proper “only when the evidence and all inferences of fact, construed most strictly in favor of the non-moving party, cannot support in the minds of jurors any reasonable difference as to any material fact or inference.” Stewart & Stevenson Servs., Inc. v. Westchester Fire Ins. Co., 804 So.2d 584, 588 (Fla.App.2002). Raytheon bore the burden of pleading comparative fault as an affirmative defense. See Fla. Stat. Ann. § 768.81(3)(e). This required Ray- theon to demonstrate to the court “that there [was] legally sufficient evidence in the record from which the jury [could] find that [Travel Consultants Aviation, the non-party] was at fault.” R. Bell Tel. & Tel. Co. v. Florida Dep’t of Transp., 668 So.2d 1039, 1041 (Fla.App.1996). Smith Investments moved for judgment" }, { "docid": "16307061", "title": "", "text": "Aviation as an agent of Smith Investments established the requisite standing for Smith Investments to pursue its breach of contract claim against Raytheon. Indeed, Smith Investments explicitly refers to Travel Consultants Aviation as its agent in (1) the “Aircraft Acquisition Agreement,” signed by both Smith Investments and Travel Consultants Aviation, in (2) its Second Amended Complaint and Jury Demand, and in (3) its Reply Brief Supporting Plaintiffs Motion for Partial Summary Judgment. In addition, this agency relationship was the “only judicial notice of the whole trial,” and no party objected to this notice. We realize, however, that use of the term “agent” is not legally determinative. Nazworth v. Swire Florida, Inc., 486 So.2d 637, 638 (Fla.App.1986). Indeed, “[t]he standard for determining whether an agent is an independent contractor is the degree of control exercised by the employer or owner over the agent. More particularly, it is the right of control, and not actual control, which determines the relationship between the parties.” Ibid, (internal citations omitted). Although Mr. Smith testified that he personally did not control how Travel Consultants operated, he also testified that the relationship between his company and Travel Consultants Aviation was controlled by the Aircraft Acquisition Agreement, which identified Travel Consultants Aviation as Smith Investments’ agent. Thus, even under this more stringent standard, we are convinced that an agency relationship existed: Smith Investments maintained a right to control whether Travel Consultants Aviation could negotiate the purchase of an airplane and, if so, to direct Travel Consultants Aviation in that purchase. As the principal for Travel Consultants Aviation, Smith Investments is liable for the work Travel Consultants Aviation conducted within the scope of its role as agent. See Life Ins. Co. of N. Am. v. Del Aguila, 417 So.2d 651 (Fla.1982) (Florida follows the basic doctrine of agency law wherein a principal is liable for the tortious conduct of his agent, even though not authorized, if the agent was acting within the scope of his employment or his apparent authority). As stated in the “Aircraft Acquisition Agreement,” the inspection of the airplane was within the scope of Travel Consultants" }, { "docid": "23118593", "title": "", "text": "been suspended. After being suspended without pay for thirty-seven days, White was reinstated to her position with full back pay on January 16,1998. After exhausting her avenues for relief before the EEOC, White filed this action against Burlington Northern in the district court, alleging sex discrimination and retaliation in violation of Title VIL A jury trial was conducted from August 29, 2000, to September 5, 2000. The jury returned a verdict in favor of Burlington Northern on White’s sex discrimination claim and a verdict in favor of White on her retaliation claim. The jury awarded White $43,500 in compensatory damages, including $3,250 in medical expenses, on her retaliation claim. The jury found against White on her claim for punitive damages. After the trial, pursuant to Federal Rule of Civil Procedure 50(b), Burlington Northern filed a renewed motion for judgment as a matter of law on the retaliation claim, which the district court denied. White filed a motion for an award of attorney’s fees pursuant to 42 U.S.C. § 2000e-5(k), and the district court awarded White $54,285, which represented eighty percent of White’s total attorney’s fees. II. MOTION FOR JUDGMENT AS A MATTER OF LAW We first review the district court’s denial of Burlington Northern’s post-trial motion for judgment as a matter of law pursuant to Rule 50(b). Our standard of review is de novo. Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir.2001). The inquiry for resolving a motion for judgment as a matter of law pursuant to Rule 50 is the same as the inquiry for resolving a motion for summary judgment pursuant to Rule 56. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). We review all of the evidence in the record in the light most favorable to the nonmoving party and determine whether there was a genuine issue of material fact for the jury. Gray, 263 F.3d at 598. We must affirm the jury verdict unless there was “no legally sufficient evidentiary basis for a reasonable jury to find for [the prevailing] party.” Fed.R.Civ.P." }, { "docid": "16307059", "title": "", "text": "affirmative misrepresentation about the airplane. Contrary to that assertion, we hold that Raytheon in fact made affirmative misrepresentations about the condition of the airplane in Mr. Zeka’s nine-page letter to Travel Consultants Aviation. In this letter, Mr. Zeka reported that he had reviewed the airplane’s logbooks and then he listed, over several pages, a series of “squawks” he had discovered “[djuring examination of the aircraft[.]” In this list of “squawks,” Mr. Zeka also referred to corrosion under one of the wings. In addition, Mr. Huth of Travel Consultants Aviation stated in deposition that Mr. Zeka told him that the airplane had been well kept. We think it is relevant that these statements were made after Mr. Zeka represented to Mr. Huth that he was a Hawker expert and failed to inform him that Ray-theon’s Ft. Lauderdale service center was not an authorized Hawker inspection site. Though these last two considerations may constitute omissions, they establish a context in which the affirmative misstatements of Mr. Zeka to Mr. Huth regarding the airplane’s condition would be reasonably relied upon. Thus, we hold that the affirmative misstatements made by Mr. Zeka to Mr. Huth about the airplane’s condition are sufficient to support § 552 liability. Therefore, we find no error in the district court’s jury instruction. VI. On cross-appeal, Smith Investments argues that the district court erroneously instructed the jury that Travel Consultants Aviation was its agent and, therefore, that the jury erroneously attributed Travel Consultants Aviation’s liability to Smith Investments. According to Smith Investments, Travel Consultants Aviation was an independent contractor for whom no liability can be attributed to Smith Investments. Raytheon contends that this argument has no merit because Travel Consultants Aviation was an agent of Smith Investments and that attributing its liability to Smith Investments comports with the fundamental doctrines of agency law. The propriety of a jury instruction is reviewed de novo. Fisher, 224 F.3d at 576. The refusal to give a jury instruction is reviewed for abuse of discretion. Ibid. We are unpersuaded by Smith Investments’ argument and hold that an agency relationship existed. First, designating Travel Consultants" }, { "docid": "23118594", "title": "", "text": "$54,285, which represented eighty percent of White’s total attorney’s fees. II. MOTION FOR JUDGMENT AS A MATTER OF LAW We first review the district court’s denial of Burlington Northern’s post-trial motion for judgment as a matter of law pursuant to Rule 50(b). Our standard of review is de novo. Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir.2001). The inquiry for resolving a motion for judgment as a matter of law pursuant to Rule 50 is the same as the inquiry for resolving a motion for summary judgment pursuant to Rule 56. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). We review all of the evidence in the record in the light most favorable to the nonmoving party and determine whether there was a genuine issue of material fact for the jury. Gray, 263 F.3d at 598. We must affirm the jury verdict unless there was “no legally sufficient evidentiary basis for a reasonable jury to find for [the prevailing] party.” Fed.R.Civ.P. 50(a). We draw all reasonable inferences in favor of the prevailing party, and we do not make any credibility determinations or weigh the evidence. Reeves, 530 U.S. at 150, 120 S.Ct. 2097. Therefore, we “must disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. at 151, 120 S.Ct. 2097. “That is, the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unim-peached, at least to the extent that that evidence comes from disinterested witnesses.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Burlington Northern contends that it is entitled to judgment as a matter of law on White’s retaliation claim because, according to Burlington Northern, neither White’s transfer from the forklift job to a standard track laborer job nor her suspension without pay for thirty-seven days constitutes an adverse employment action for purposes of Title VII. In the alternative, Burlington Northern contends that" }, { "docid": "6108010", "title": "", "text": "cases where an appellant made a Rule 56 motion for summary judgment that was denied, reiterated those same arguments in a Rule 50(a) motion at the close of evidence that was also denied, lost in front of a jury, and then renewed its arguments in a rejected Rule 50(b) motion after the entry of judgment, we will review only the denial of the Rule 50(b) motion. K & T Enters. v. Zurich Ins., Co., 97 F.3d 171, 174 (6th Cir.1996). We review a district court’s denial of a motion for judgment as a matter of law or a renewed motion for judgment as a matter of law de novo. United States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th Cir.2003): Judgment as a matter of law may only be granted if, when viewing the evidence in a light most favorable to the non-moving party, giving that party the benefit. of all reasonable inferences, there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion in favor of the moving party. Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir.2001); see also Williams v. Nashville Network, 132 F.3d 1123, 1130-31 (6th Cir.1997). The City argues on appeal that Barnes did not plead or prove a prima facie case of sex discrimination under Title VII. The City, also argues that- the district court erred by not granting its motion for judgment as a matter of law and by denying its motions for summary judgment and to dismiss. For the reasons stated below, we find that the City’s claim that Barnes failed to plead and prove a prima facie case lacks merit and hold that the district court did not err when it denied the City judgment as a matter of law. When reviewing the facts of a discrimination claim after there has been a full trial on the merits, we must focus on the ultimate question of discrimination rather than on whether a plaintiff made out a prima facie case. See Noble v. Brinker Intern., Inc., 391 F.3d" } ]

[ { "docid": "23490924", "title": "", "text": "(2d Cir.1991); National Equip. Rental, Ltd. v. Fowler, 287 F.2d 43, 45 (2d Cir.1961). Staying the later-filed action serves to prevent the inefficiency and wastefulness of allowing duplicative litigation to proceed in two different fora. See National Equip., 287 F.2d at 46 n. 1 (affirming decision to enjoin later-filed proceedings and noting that choice was not only proper but “a wise one indeed” in view of wastefulness of duplicative proceedings). The first-filed rule is not be applied mechanically, but the party that seeks to deviate from the rule has the burden of demonstrating that circumstances justify ing an exception exist. See Hanson PLC v. Metro-Goldwyn-Mayer Inc., 932 F.Supp. 104, 106 (S.D.N.Y.1996); 800-Flowers, 860 F.Supp. at 132. The determination as to whether there are circumstances warranting a departure from the first-filed rule is committed to the sound discretion of the district court. See Simmons, 878 F.2d at 77; Gluckin, 407 F.2d at 179. “Special circumstances” justifying an exception have been held to be present when the first suit constitutes an “improper anticipatory filing” or was motivated solely by forum shopping. Toy Biz, Inc. v. Centuri Corp., 990 F.Supp. 328, 332 (S.D.N.Y.1998); Ontel Prod., Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1150 (S.D.N.Y.1995). Indeed, the Second Circuit has noted that “the chief ‘special circumstance’ ... is our interest in discouraging forum shopping.” Motion Picture Lab. Technicians Local 780 v. McGregor & Werner, Inc., 804 F.2d 16, 19 (2d Cir.1986); see also Kellen Co., Inc. v. Calphalon Corp., 54 F.Supp.2d 218, 223 (S.D.N.Y.1999) (“Most commonly, courts have recognized an exception to the first-filed rule where the first-filed action was instituted by the defendant in the second action, and the defendant won the race to the courthouse under questionable circumstances.”). It is not a matter of dispute that the first-filed rule has threshold application to this case. City Holding agrees with Citigroup that the lawsuits at issue here are parallel. The overarching issue in both is whether City Holding’s use of the CITY marks and trade dress infringes Citigroup’s rights in the CITI family of marks and trade dress. Both parties also agree" } ]

[ { "docid": "16317948", "title": "", "text": "relatively unexceptional questions of contract and fraud. If New York’s choice of law rules provide that California law is the appropriate law to apply, ... then a New York court will be capable of applying it.”). As to the eighth factor, trial efficiency and the interests of justice, Ramsey argues that this action should be transferred to Kentucky to avoid duplication with Ramsey’s Kentucky action. (Ramsey Br. at 11.) That, of course, ignores the first filed rule, which requires the second action (Ramsey’s Kentucky action) to give way to the first filed action absent special circumstances, here absent. Moreover, since Ramsey has now filed counterclaims against .Schnabel, all of Ramsey’s Kentucky claims are now present in this action. This factor thus does not favor transfer to Kentucky. The Court also notes that discovery has commenced in this District, under a schedule that calls for the completion of discovery by August 31, 2004 and the filing of the Pretrial Order (or a summary judgment motion) by September 20, 2004. (Dkt. No. 23; 5/21/04 Scheduling Order.) As far as this Court can tell, the case will be trial ready in this District before it would be trial ready in Kentucky — which favors continuing this action here rather than transferring it to Kentucky. See, e.g., Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F.Supp.2d at 439. As to the ninth factor, where a disparity exists between the means of the parties, the Court may consider the relative means of the parties in determining where a case should proceed. Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 178 F.Supp.2d at 467; see also e.g., Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d at 59; 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. at 135. This factor weights in Schnabel’s favor. Schnabel points out that Ramsey has ample resources to support travel to New York of defendant’s witnesses, and would suffer no great hardship to travel. (Schnabel Br. at 15-16.) Ramsey is a corporation with the means to litigate in a distant forum, and has not suggested that traveling to New York" }, { "docid": "16317918", "title": "", "text": "he was in Louisville but that Schnabel confiscated it when he resigned. (Ramsey Aff. ¶ 5; Dkt. No. 3: Ramsey Br. at 3.) On October 29, 2003, Ramsey sent an email to Schnabel threatening that Ramsey would “take ‘all necessary action to protect [its] interests.’ ” (Dkt. No. 13: Schnabel Br. at 10.) On November 3, 2003, Neil Ramsey emailed a letter to Schnabel in an attempt to resolve issues arising out of Schnabel’s resignation. (Ramsey Aff. ¶ 12 & Att. 11/3/03 Letter.) In the letter, Ramsey demanded Schnabel return the proprietary information and Non-Disclosure Agreement and explain why Schnabel believes he has rights to the computer program. (Ramsey Aff. Att.: 11/3/03 Letter.) The letter referred to attempting to “sort this out and come to an understanding” and to try to keep it between Schnabel and Neil Ramsey. (Id.) Schnabel’s Suit Against Ramsey in This Court Two days after that letter, on November 5, 2003, Schnabel filed a Complaint in this Court asserting claims for breach of contract and seeking a declaratory judgment, pursuant to 28 U.S.C. § 2201, that he was the owner of all intellectual property rights associated with Selector. (Dkt. No. 1: Compl. ¶¶ 1, 14-25.) On December 17, 2003, before being served with Schnabel’s S.D.N.Y. Complaint, Ramsey filed its Complaint in the United States District Court for the Western District of Kentucky. (Dkt. No. 3: Ramsey Br. at 4; Dkt. No. 2: Ramsey Motion Ex. 6: W.D. Ky. Complaint.) Ramsey’s W.D. Ky. complaint alleges that Schnabel: (1) violated the Computer Fraud and Abuse Act; (2) breached his contract and Employee NonDisclosure Agreement; and (3) misappropriated confidential information in violation of the Kentucky Uniform Trade Secrets Act. (Ramsey Br. at 4; W.D. Ky. Complaint.) Schnabel signed a waiver of service for the Kentucky complaint on January 29, 2004. (Dkt. No. 13: Schnabel Br. at 8; see Ramsey Br. at 4.) On June 4, 2004, Ramsey filed its answer in this Court and asserted as counterclaims the same three claims as in its W.D. Ky. complaint (Dkt. No. 27: Ramsey Ans.: Counterclaim ¶¶ 1-44), essentially making the S.D.N.Y." }, { "docid": "999128", "title": "", "text": "two takes priority, absent ‘special circumstances’ or a balance of convenience in favor of the second.” Transatlantic Reinsurance, 2003 WL 22743829, at *1. HLP filed its complaint in the case at bar on October 31, 2003, several days before EA filed the California Case. HLP’s initial complaint listed as defendants SCEA, Random House, and Sony. HLP amended the complaint on November 6, 2003 to add EA and the Retailer Defendants. HLP argues that the present case is the first action filed involving the alleged trademark and copyright infringements at issue. Defendants maintain that the California Case, which EA filed against HE (who it believed to be the successor to HLP), is the first filed case between EA and HLP involving the alleged trademark and copyright infringements because HLP did not add EA as a defendant in the instant case until after EA filed the California Case. Courts do not mechanically apply the first-filed rule “where the first suit constitutes an ‘improper anticipatory filing’ or was motivated solely by forum shopping.” Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 54 (S.D.N.Y.2001). Because the Court, is persuaded that both of those situations exist here, the first-filed rule is not particularly helpful in resolving the motion to transfer. An improper anticipatory filing is one “made under the apparent threat of a presumed adversary filing the mirror image of that suit in a different [court].” Ontel Prods., Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1150 (S.D.N.Y.1995). An anticipatory filing is improper when “it attempts to exploit the first-filed rule by securing a venue that differs from the one that the filer’s adversary would be expected to choose.” Id. Here, HLP initially filed the present action in this District against several parties, but not against EA, on the day before the Tolling Agreement expired. While that agreement remained in effect, HLP could not name EA as a defendant, nor could EA initiate a suit for declaratory judgment against HLP. After the Tolling Agreement expired, EA filed the declaratory judgment action in California, and the next day HLP amended its complaint in this" }, { "docid": "16317919", "title": "", "text": "28 U.S.C. § 2201, that he was the owner of all intellectual property rights associated with Selector. (Dkt. No. 1: Compl. ¶¶ 1, 14-25.) On December 17, 2003, before being served with Schnabel’s S.D.N.Y. Complaint, Ramsey filed its Complaint in the United States District Court for the Western District of Kentucky. (Dkt. No. 3: Ramsey Br. at 4; Dkt. No. 2: Ramsey Motion Ex. 6: W.D. Ky. Complaint.) Ramsey’s W.D. Ky. complaint alleges that Schnabel: (1) violated the Computer Fraud and Abuse Act; (2) breached his contract and Employee NonDisclosure Agreement; and (3) misappropriated confidential information in violation of the Kentucky Uniform Trade Secrets Act. (Ramsey Br. at 4; W.D. Ky. Complaint.) Schnabel signed a waiver of service for the Kentucky complaint on January 29, 2004. (Dkt. No. 13: Schnabel Br. at 8; see Ramsey Br. at 4.) On June 4, 2004, Ramsey filed its answer in this Court and asserted as counterclaims the same three claims as in its W.D. Ky. complaint (Dkt. No. 27: Ramsey Ans.: Counterclaim ¶¶ 1-44), essentially making the S.D.N.Y. action identical to the Kentucky action. Presently before this Court is Ramsey’s motion to dismiss Schnabel’s action or, in the alternative, to transfer this suit to the Western District of Kentucky. (Dkt. No. 2: Ramsey Motion.) ANALYSIS I. THE FIRST FILED RULE: LEGAL PRINCIPLES “Courts in this Circuit adhere to the first filed rule: ‘Where two courts have concurrent jurisdiction over an action involving the same parties and issues, courts will follow a “first filed” rule whereby the court which first has possession of the action decides it.’ ” Clarendon Nat’l Ins. Co. v. Pascual, 99 Civ. 10840, 2000 WL 270862 at *1 (S.D.N.Y. Mar. 13, 2000) (Peck, M.J.) (quoting 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128, 131 (S.D.N.Y.1994)); see also, e.g., Buddy USA, Inc. v. Recording Indus. Ass’n of Am., Inc., 21 Fed.Appx. 52, 55, 2001 WL 1220548 at *2 (2d Cir.2001); City of New York v. Exxon Corp., 932 F.2d 1020, 1025 (2d Cir.1991) (“The ‘first filed’ rule states that ‘where an action is brought in one federal district court and" }, { "docid": "16317947", "title": "", "text": "disturbing it unless other factors weigh strongly in favor of transfer.”); Coker v. Bank of Am., 984 F.Supp. at 766 (“A plaintiffs choice of forum is generally given substantial weight.”) ( & cases cited therein). Plaintiff Schnabel is a resident of New York (see Schnabel Br. at 12), relevant facts such as his creation of the computer program took place in New York (Schnabel Br. at 17), and therefore Schnabel’s choice of forum is given significant weight. As to the seventh factor, the governing law, it is not clear at this point whether New York or Kentucky law will apply; nevertheless, there is no doubt that this Court is qualified to apply New York’s choice of law rules and either state’s substantive law to Schnabel’s claims. See, e.g., Clarendon Nat’l Ins. Co. v. Pascual, 2000 WL 270862 at *5; Coker v. Bank of Am., 984 F.Supp. at 766 ( & cases cited therein); S-Fer Int’l, Inc. v. Paladion Partners, Ltd., 906 F.Supp. at 215-16 (“[E]ven if California law governs this dispute, the legal issues involve relatively unexceptional questions of contract and fraud. If New York’s choice of law rules provide that California law is the appropriate law to apply, ... then a New York court will be capable of applying it.”). As to the eighth factor, trial efficiency and the interests of justice, Ramsey argues that this action should be transferred to Kentucky to avoid duplication with Ramsey’s Kentucky action. (Ramsey Br. at 11.) That, of course, ignores the first filed rule, which requires the second action (Ramsey’s Kentucky action) to give way to the first filed action absent special circumstances, here absent. Moreover, since Ramsey has now filed counterclaims against .Schnabel, all of Ramsey’s Kentucky claims are now present in this action. This factor thus does not favor transfer to Kentucky. The Court also notes that discovery has commenced in this District, under a schedule that calls for the completion of discovery by August 31, 2004 and the filing of the Pretrial Order (or a summary judgment motion) by September 20, 2004. (Dkt. No. 23; 5/21/04 Scheduling Order.) As" }, { "docid": "16317931", "title": "", "text": "interests’ ” (see Dkt. No. 13: Schnabel Br. at 10), the Court considers such communication an attempt to initiate settlement negotiations rather than notice of suit. See, e.g., Employers Ins. of Wausau v. Prudential Ins. Co., 763 F.Supp. at 49 (letters stating intent to “pursue all available remedies” and “hoped to avoid litigation” were merely attempts to initiate settlement negotiations rather than notice of a lawsuit). Ramsey also argues that Schnabel’s mere commencement of a declaratory judgment itself establishes that Schnabel “engaged in forum shopping.” (Ramsey Br. at 6.) However, the first filed rule “has been applied in actions regardless of whether a declaratory judgment was sought in the initial action. Accordingly, the fact that [a party] sought declaratory judgment is not dispositive of the issue ... A party’s reasonable apprehension of a legal controversy may be sufficient to satisfy the requirements of a justiciable controversy without rising to the level of a direct threat of imminent litigation. Were this not the case, each time a party sought declaratory judg[]ment in one forum, a defendant filing a second suit in a forum more favorable to defendant could always prevail under the anticipatory filing exception.” 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128, 132 (S.D.N.Y.1994) (citations omitted); see, e.g., Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 178 F.Supp.2d 459, 469-70 (S.D.N.Y.2002); Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 54-55 (S.D.N.Y.2001); see also, e.g., Ontel Prods., Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1150-52 (S.D.N.Y.1995). Ramsey also claims that Schnabel engaged in forum shopping by initiating suit in New York. (Dkt. No. 16: Ramsey Reply Br. at 9.) The Court disagrees. “ ‘Forum shopping occurs when a litigant selects a forum with only a slight connection to the factual circumstances of his action, or where forum shopping alone motivated the choice.’ ” Everest Capital Ltd. v. Everest Funds Mgmt., 178 F.Supp.2d at 470 (quoting Riviera Trading Corp. v. Oakley, Inc., 944 F.Supp. 1150, 1158 (S.D.N.Y.1996)). A party who appropri ately files a declaratory judgment action in the forum most convenient to him to resolve a ripe" }, { "docid": "22795139", "title": "", "text": "is that the first suit should have priority, “ ‘absent the showing of balance of convenience in favor of the second action’ ... or unless there are special circumstances which justify giving priority to the second.” William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir. 1939), quoting Remington Products Corp. v. American Aerovap, Inc., 192 F.2d 872 (2d Cir. 1951). The Supreme Court has articulated the test to be “wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation . . .” Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). In deciding between competing jurisdictions, the balancing of convenience should be left to the sound discretion of the district court. Id. at 183-84, 72 S.Ct. 219; William Gluckin & Co. v. International Playtex Corp., 407 F.2d at 178. We conclude that the district court did not abuse its discretion by allowing the later filed action to proceed. First, at the time that this case was filed, two additional lawsuits against other defendants by Factors presenting the identical issue for resolution were pending in the Southern District of New York. Efficient and responsible judicial administration dictated that these three cases be tried before the same forum. Id. See Remington Products Corp. v. American Aerovap, Inc., 192 F.2d 872, 873 (2d Cir. 1951). Second, Pro Arts’ suit for declaratory judgment was filed in apparent anticipation of Factors’ New York suit. When the declaratory judgment action has been triggered by a notice letter, this equitable consideration may be a factor in the decision to allow the later filed action to proceed to judgment in the plaintiffs’ chosen forum. Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967). Accord, Columbia Pictures Industries, Inc. v. Schneider, 435 F.Supp. 742, 747 (S.D.N.Y.1977). As Mr. Justice Brennan has observed, “[t]he federal declaratory judgment is not a prize to the winner of a race to the courthouses.” Perez v. Ledesma, 401 U.S. 82, 119 n. 12, 91 S.Ct. 674, 694, 27 L.Ed.2d 701" }, { "docid": "16347652", "title": "", "text": "rule required exact identity of the parties, the SDNY Action would still take priority over this later filed action. On April 29, 2005, TAC amended its complaint in the SDNY Action to add Spotless Enterprises as a defendant. This amendment “relates back” to the original commencement date, which is without question prior to the commencement date of this action. See Fed. R.Civ.P. 15(c)(2); Mattel, 353 F.2d at 423; Versus, 2004 WL 3457629, at *6; Pergo, Inc. v. Alloc, Inc., 262 F.Supp.2d 122, 132 (S.D.N.Y.2003); Nat’l Foam, Inc. v. Williams Fire & Hazard Control, Inc., No. 97-3105, 1997 WL 700496, at *4-7 (E.D.Pa. Oct. 29, 1997). Accordingly, the Court finds that the first-filed rule applies in this case and that the earlier filed SDNY Action takes precedent over this action. Further, Spotless Enterprises has pointed to no “special circumstances” to justify a departure from the first-filed rule. Special circumstances that may justify a departure from the first-filed rule include “customer actions,” “improper anticipatory actions,” and where the “balance of convenience and interest of justice” favors the second suit. “Customer actions” involve cases where the first-filed suit is against a customer of the alleged infringer and the second suit is against the infringer himself. See Country Home Products, Inc. v. Schiller-Pfeiffer, Inc., 350 F.Supp.2d 561, 570 n. 2 (D.Vt.2004); Delamere Co. v. Taylor-Bell Co., 199 F.Supp. 55 (S.D.N.Y.1961). This exception has no bearing on this dispute. “Improper anticipatory actions,” include cases where forum-shopping moti vated the filing of the suit and choice of venue. Fed. Ins. Co. v. May Dep’t Stores Co., 808 F.Supp. 347, 350 (S.D.N.Y.1992); see Mattel, 353 F.2d at 424 n. 4. Here, Spotless Enterprises, not TAC, appears to be the party that has commenced an improper anticipatory action. Spotless Enterprises filed this declaratory judgment action soon after it received word of the SDNY Action, in an apparent effort to win the race to the courthouse. “[T]he declaratory judgment action cannot be used as a substitute for the rules of civil procedure in response to a pending lawsuit, ... nor can declaratory judgment be used as yet another weapon" }, { "docid": "1841802", "title": "", "text": "to the sound discretion of the district courts.” William Gluckin & Co., 407 F.2d at 178; Accord New York v. Exxon Corp., 932 F.2d 1020, 1025 (2d Cir.1991). Additionally, plaintiff bears the burden of demonstrating any special circumstances justifying an exception to the rule. See Ivy-Mar, 1993 WL 535166 at *1, 1993 U.S.Dist. LEXIS 17965 at *2. Generally, a “special circumstances” exception to the first filed rule exists where “forum shopping alone motivated the choice of the situs for the first suit.” William Gluckin, 407 F.2d at 178 (citing Rayco Mfg. Co. v. Chicopee Mfg. Co., 148 F.Supp. 588 (S.D.N.Y.1957)); accord Capitol Records, Inc. v. Optical Recording Corp., 810 F.Supp. 1350, 1353 (S.D.N.Y.1992). In the instant action, plaintiff endeavors to argue that such special circumstances exist. Plaintiff contends that the second suit should have priority, because ICF’s suit was commenced under a direct threat' of imminent litigation, and, therefore, was an improper anticipatory filing. To support its argument, plaintiff cites defendant’s description of plaintiff’s disparaging remarks, which include plaintiff’s comments to potential customers that ICF and 800-Flowers were involved in litigation. Plaintiff contends that because defendant suggested these remarks were made, defendant’s initiation of suit must have been in anticipation of, and under the imminent threat of, an action by 800-Flowers against ICF. Plaintiffs Reply Memorandum at 3-4. Plaintiff also contends that the fact defendant sought declaratory relief in its complaint is proof that the action was filed under a direct threat of litigation. However, the first filed rule, as defendant correctly notes, has been applied in actions regardless of whether a declaratory judgment was sought in the initial action. See, e.g., Thompson Medical Company, Inc. v. National Center of Nutrition, Inc., 718 F.Supp. 252, 253 (S.D.N.Y.1989). Accordingly, the fact that ICF sought declaratory judgment is not dis-positive of the issue. Furthermore, plaintiff 800-Flowers’ alleged remarks to customers concerning pending litigation does not necessarily prove an anticipatory filing nor that ICF is not the true plaintiff in the matter. A party has a right to seek declaratory judgment where a reasonable apprehension exists that if it continues an activity it" }, { "docid": "16317951", "title": "", "text": "exception to the first filed rule or under 28 U.S.C. § 1404. Accordingly, Ramsey’s motion to dismiss or transfer is DENIED. Schnabel has not asked this Court to enjoin Ramsey’s pursuit of the Kentucky action, but it is implicit in this Court’s ruling on Ramsey’s motion that Ramsey will not pursue the Kentucky action. If further relief is necessary and desired by Schnabel, he should apply for it (but the Court expects that will not be necessary). SO ORDERED. . The written draft Offer of Employment stated that Ramsey was hiring Schnabel “to add [to] the overall depth of the RQSI [i.e., Ramsey] product development team,” “to create a new product,” \"be responsible for all fundamental research of RQSI,” and \"add value where he can ... in the overall upgrade of the business.” (Schnabel Aff. Ex. A: 1/21/03 Draft Offer of Employment; see also Ramsey Aff. ¶ 4.) . Ramsey was served with Schnabel's S.D.N.Y. Complaint on January 16, 2003. (Dkt. No. 3: Ramsey Br. at 4; Dkt. No. 2: Ramsey Motion Ex. 5: 1/15/04 Letter.) . See also, e.g., Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 178 F.Supp.2d 459, 461, 464-65 (S.D.N.Y.2002); Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 54 (S.D.N.Y.2001); Chicago Ins. Co. v. Holzer, 00 civ. 1062, 2000 WL 777907 at *2 (S.D.N.Y. June 16, 2000); Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549, 555 (S.D.N.Y.2000) (describing rule as a \" 'well-settled principle1 ”); Ontel Prods., Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1150 (S.D.N.Y.1995); J. Lyons & Co. v. Republic of Tea, Inc., 892 F.Supp. 486, 490-91 (S.D.N.Y.1995); 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. at 132; Employers Ins. of Wausau v. Prudential Ins. Co. of Am., 763 F.Supp. 46, 48 (S.D.N.Y.1991). . The relative dates of service of the complaints are irrelevant to the inquiry of which action was first filed. E.g., Berisford Capital Corp. v. Central States, S.E. & S.W. Areas Pension Fund, 677 F.Supp. 220, 222 n. 1 (S.D.N.Y.1988) (“The 'first service' rule is not the law of this circuit.”); See, e.g., MSK Ins., Ltd. v." }, { "docid": "16317929", "title": "", "text": "we will commence suit in a court of appropriate jurisdiction in forty eight (48) \"hours’ ”); Mondo, Inc. v. Spitz, 97 Civ. 4822, 1998 WL 17744 at *1-2 (S.D.N.Y. Jan. 16, 1998) (Declaratory judgment action filed after receipt of a letter stating the sender’s “intention to file suit in California if settlement negotiations were not fruitful” was anticipatory filing.); Federal Ins. Co. v. May Dep’t Stores Co., 808 F.Supp. 347, 350 (S.D.N.Y.1992) (Declaratory judgment action found to be anticipatory when filed after receipt of letter stating that if sender’s claim was not satisfied by a specific date, defendant would sue.); with, e.g., J. Lyons & Co. v. Republic of Tea, Inc., 892 F.Supp. 486, 491 (S.D.N.Y.1995) (“When a notice letter informs a defendant of the intention to file suit, a filing date, and/or a specific forum for the filing of the suit, the courts have found, in the exercise of discretion, in favor of the second-filed action.” Here, second-filed S.D.N.Y. action dismissed in favor of first-filed declaratory judgment action where cease and desist letter mentioned possibility of litigation but did not specify any date or forum.); Employers Ins. of Wausau v. Prudential Ins. Co., 763 F.Supp. 46, 49 (S.D.N.Y.1991) (letter stating that defendant “ ‘hoped to avoid litigation’ ” was at best an attempt to initiate settlement negotiations and cannot reasonably be construed as a notice of suit.... Communications deemed to constitute notice of suit generally contain at least one of those elements,” ie., “mentioning a lawsuit, a tentative filing date or a forum.”). Ramsey contends that Schnabel’s filing of this lawsuit two days after receipt of what Ramsey considers a “notice” email from Ramsey constitutes anticipatory filing. (Dkt. No. 3: Ramsey Br. at 5). However, Ramsey’s November 3, 2003 email letter to Schnabel contains no explicit mention of a lawsuit, forum, deadline or filing date, and thus is insufficient to constitute notice of a lawsuit under the above cases. (Dkt. No. 2: Ramsey Motion Ex. 1: Ramsey Aff.: Att: 11/3/03 Letter). And while Ramsey’s October 29, 2003 email threatened that Ramsey would “take ‘all necessary action to protect [its]" }, { "docid": "16317932", "title": "", "text": "filing a second suit in a forum more favorable to defendant could always prevail under the anticipatory filing exception.” 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128, 132 (S.D.N.Y.1994) (citations omitted); see, e.g., Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 178 F.Supp.2d 459, 469-70 (S.D.N.Y.2002); Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 54-55 (S.D.N.Y.2001); see also, e.g., Ontel Prods., Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1150-52 (S.D.N.Y.1995). Ramsey also claims that Schnabel engaged in forum shopping by initiating suit in New York. (Dkt. No. 16: Ramsey Reply Br. at 9.) The Court disagrees. “ ‘Forum shopping occurs when a litigant selects a forum with only a slight connection to the factual circumstances of his action, or where forum shopping alone motivated the choice.’ ” Everest Capital Ltd. v. Everest Funds Mgmt., 178 F.Supp.2d at 470 (quoting Riviera Trading Corp. v. Oakley, Inc., 944 F.Supp. 1150, 1158 (S.D.N.Y.1996)). A party who appropri ately files a declaratory judgment action in the forum most convenient to him to resolve a ripe legal dispute is not engaged in forum shopping. See, e.g., J. Lyons & Co. v. Republic of Tea, Inc., 892 F.Supp. at 491. Schnabel resides in New York, developed his computer program in New York, and met with Ramsey in New York to discuss his employment contract. Schnabel’s choice of this forum does not suggest forum shopping. Finally, the Court notes that the parties’ briefs, and hence this Opinion, have focused on the declaratory judgment claim in Schnabel’s complaint. (Dkt. No. 1: Compl. ¶¶ 14-18.) Schnabel’s second and third causes of action, however, assert direct claims for breach of contract. (Compl.¶¶ 19-25.) This is even more reason to apply the first filed rule and stay the second, Kentucky action. Accordingly, the Court finds that Ramsey has failed to demonstrate “special circumstances” to justify an exception to the first filed rule. III. RAMSEY HAS FAILED TO SHOW THAT THE BALANCE OF CONVENIENCE FAVORS TRANSFERRING THE CASE TO KENTUCKY AS AN EXCEPTION TO THE FIRST FILED RULE OR PURSUANT TO § 1404 Ramsey also argues that the" }, { "docid": "16317949", "title": "", "text": "far as this Court can tell, the case will be trial ready in this District before it would be trial ready in Kentucky — which favors continuing this action here rather than transferring it to Kentucky. See, e.g., Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F.Supp.2d at 439. As to the ninth factor, where a disparity exists between the means of the parties, the Court may consider the relative means of the parties in determining where a case should proceed. Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 178 F.Supp.2d at 467; see also e.g., Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d at 59; 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. at 135. This factor weights in Schnabel’s favor. Schnabel points out that Ramsey has ample resources to support travel to New York of defendant’s witnesses, and would suffer no great hardship to travel. (Schnabel Br. at 15-16.) Ramsey is a corporation with the means to litigate in a distant forum, and has not suggested that traveling to New York would substantially impair its operations. Schnabel, who works independently in equity trading, is much more likely to suffer adverse monetary consequences as a result of traveling to litigate the matter in Kentucky. Overall, considering that the burden is on defendant Ramsey to demonstrate that as a matter of convenience the litigation should proceed in Kentucky rather than New York, the Court concludes that Ramsey has not met its burden. Transferring the case to Kentucky would merely result in shifting any inconvenience from Ramsey to Schnabel. Accordingly, the balance of convenience does not justify a departure from the first filed rule, and plaintiff Schnbel’s choice of forum will not be disturbed. CONCLUSION The Court concludes that the first filed rule governs this matter. Ramsey has demonstrated neither special circumstances sufficient to create an exception to the first filed rule, nor has Ramsey met its heavy burden of showing that the factors considered in balancing the conveniences favors Kentucky sufficiently to warrant a dismissal or transfer of the case to the Western District of Kentucky as an" }, { "docid": "16317923", "title": "", "text": "Pro Arts, Inc., 579 F.2d at 218-19. As between this Court and the Western District of Kentucky, it is up to this Court to decide which forum will hear these actions: “This District has laid down a bright-line rule for situations such as this: “The court before which the first-filed action was brought determines which forum will hear the case.” MSK Ins., Ltd. v. Employers Reinsurance Corp., 212 F.Supp.2d 266, 267 (S.D.N.Y.2002) (citing cases); accord, e.g., Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d at 54 n. 2; Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F.Supp.2d 433, 440 (S.D.N.Y.2000); Citigroup Inc. v. City Holding Co., 97 F.Supp.2d at 557 n. 4; Ontel Prods., Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1150 n. 9 (S.D.N.Y.1995) (“Case law indicates that the court in which the first-filed case was brought decides the question of whether or not the first-filed rule, or alternatively, an exception to the first-filed rule, applies.”); Donaldson, Lufkin & Jenrette, Inc. v. Los Angeles County, 542 F.Supp. 1317, 1321 (S.D.N.Y.1982). Schnabel filed this action on November 5, 2003 in this Court. On December 17, 2003, Ramsey filed a similar action arising out of the same dispute in the Western District of Kentucky. Since this Court clearly was the court in which an action was first filed, this Court should decide which Court will hear this case. II. RAMSEY PRESENTS NO SPECIAL CIRCUMSTANCES TO SUPPORT AN EXCEPTION TO THE FIRST FILED RULE Ramsey asserts that the first-filed rule does not apply and that preference should be given to the second-filed suit in Kentucky because, inter alia, special circumstances exist. (Dkt. No. 3: Ramsey Br. at 5-6.) Special circumstances are present when the first suit was filed as a result of forum shopping or when the first suit was a result of “anticipatory filing.” See, e.g., William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir.1969); Raytheon Co. v. National Union Fire Ins. Co., 306 F.Supp.2d 346, 352 (S.D.N.Y.2004); Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 54 (S.D.N.Y.2001); Citigroup Inc. v." }, { "docid": "16317950", "title": "", "text": "would substantially impair its operations. Schnabel, who works independently in equity trading, is much more likely to suffer adverse monetary consequences as a result of traveling to litigate the matter in Kentucky. Overall, considering that the burden is on defendant Ramsey to demonstrate that as a matter of convenience the litigation should proceed in Kentucky rather than New York, the Court concludes that Ramsey has not met its burden. Transferring the case to Kentucky would merely result in shifting any inconvenience from Ramsey to Schnabel. Accordingly, the balance of convenience does not justify a departure from the first filed rule, and plaintiff Schnbel’s choice of forum will not be disturbed. CONCLUSION The Court concludes that the first filed rule governs this matter. Ramsey has demonstrated neither special circumstances sufficient to create an exception to the first filed rule, nor has Ramsey met its heavy burden of showing that the factors considered in balancing the conveniences favors Kentucky sufficiently to warrant a dismissal or transfer of the case to the Western District of Kentucky as an exception to the first filed rule or under 28 U.S.C. § 1404. Accordingly, Ramsey’s motion to dismiss or transfer is DENIED. Schnabel has not asked this Court to enjoin Ramsey’s pursuit of the Kentucky action, but it is implicit in this Court’s ruling on Ramsey’s motion that Ramsey will not pursue the Kentucky action. If further relief is necessary and desired by Schnabel, he should apply for it (but the Court expects that will not be necessary). SO ORDERED. . The written draft Offer of Employment stated that Ramsey was hiring Schnabel “to add [to] the overall depth of the RQSI [i.e., Ramsey] product development team,” “to create a new product,” \"be responsible for all fundamental research of RQSI,” and \"add value where he can ... in the overall upgrade of the business.” (Schnabel Aff. Ex. A: 1/21/03 Draft Offer of Employment; see also Ramsey Aff. ¶ 4.) . Ramsey was served with Schnabel's S.D.N.Y. Complaint on January 16, 2003. (Dkt. No. 3: Ramsey Br. at 4; Dkt. No. 2: Ramsey Motion Ex. 5: 1/15/04" }, { "docid": "16317924", "title": "", "text": "filed this action on November 5, 2003 in this Court. On December 17, 2003, Ramsey filed a similar action arising out of the same dispute in the Western District of Kentucky. Since this Court clearly was the court in which an action was first filed, this Court should decide which Court will hear this case. II. RAMSEY PRESENTS NO SPECIAL CIRCUMSTANCES TO SUPPORT AN EXCEPTION TO THE FIRST FILED RULE Ramsey asserts that the first-filed rule does not apply and that preference should be given to the second-filed suit in Kentucky because, inter alia, special circumstances exist. (Dkt. No. 3: Ramsey Br. at 5-6.) Special circumstances are present when the first suit was filed as a result of forum shopping or when the first suit was a result of “anticipatory filing.” See, e.g., William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir.1969); Raytheon Co. v. National Union Fire Ins. Co., 306 F.Supp.2d 346, 352 (S.D.N.Y.2004); Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 54 (S.D.N.Y.2001); Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549, 556 (S.D.N.Y.2000). Ramsey suggests that the suspicious timing of Schnabel’s filing the S.D.N.Y. complaint but delaying service indicates that Schnabel filed his declaratory judgment action in anticipation of Ramsey filing a lawsuit against him and that Schnabel was forum shopping. (Dkt. No. 3: Ramsey Br. at 5-6.) The Second Circuit recently summarized the law regarding “special circumstances” surrounding a declaratory judgment action, explaining that a declaratory judgment is considered “anticipatory” if filed in response to a demand letter specifically threatening litigation, but is not anticipatory where it is in response to a negotiating letter: One type of special circumstance is present where the first, declaratory action is filed in response to a direct threat of litigation. “When the declaratory action has been triggered by a notice letter, this equitable consideration may be a factor in the decision to allow the later filed action to proceed to judgment in the plaintiffs’ chosen forum.” Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir.1978), cert. denied, 440 U.S." }, { "docid": "16317925", "title": "", "text": "City Holding Co., 97 F.Supp.2d 549, 556 (S.D.N.Y.2000). Ramsey suggests that the suspicious timing of Schnabel’s filing the S.D.N.Y. complaint but delaying service indicates that Schnabel filed his declaratory judgment action in anticipation of Ramsey filing a lawsuit against him and that Schnabel was forum shopping. (Dkt. No. 3: Ramsey Br. at 5-6.) The Second Circuit recently summarized the law regarding “special circumstances” surrounding a declaratory judgment action, explaining that a declaratory judgment is considered “anticipatory” if filed in response to a demand letter specifically threatening litigation, but is not anticipatory where it is in response to a negotiating letter: One type of special circumstance is present where the first, declaratory action is filed in response to a direct threat of litigation. “When the declaratory action has been triggered by a notice letter, this equitable consideration may be a factor in the decision to allow the later filed action to proceed to judgment in the plaintiffs’ chosen forum.” Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). “[T]he federal declaratory judgment is not a prize to the winner of a race to the courthouses.” Id .... Following Factors, district courts have typically found an exception to the first-filed rule where declaratory actions are filed in response to demand letters that give specific warnings as to deadlines and subsequent legal action. In Fed. Ins. Co. v. May Dep’t Stores Co., 808 F.Supp. 347 (S.D.N.Y.1992), the court held that one can infer forum shopping from the fact that the declaratory action was filed after receipt of letter notice stating that if the sender’s claim was not satisfied by a specific date, then defendant would sue. Id. at 350. In Chicago Ins. Co. v. Holzer, the district court held that the specific warning requirement was met by a notice letter stating that if the recipient’s decision “remains unaltered, we will commence suit in a court of appropriate jurisdiction in forty eight (48) hours.” 2000 WL 777907 at *1 (S.D.N.Y. June 16, 2000). The district court also noted" }, { "docid": "16317912", "title": "", "text": "OPINION & ORDER PECK, Chief United States Magistrate Judge. Plaintiff Gadi Schnabel brought this action for a declaratory judgment to “quiet title” to his “Selector” computer program and for breach of his employment contract with defendant Ramsey Quantitative Systems, Inc. (See generally Dkt. No. 1: Compl.) After the filing of this action but before Ramsey was served with it, Ramsey filed suit against Schnabel in the United States District Court for the Western District of Kentucky. (Dkt. No. 2: Ramsey Motion to Dismiss or Transfer (hereafter, “Ramsey Motion”), Ex. 6: W.D. Ky. Compl.) Presently before this Court is Ramsey’s motion to dismiss this action in favor of the Kentucky action under an exception to the “first filed rule,” or in the alternative to transfer this action to the Western District of Kentucky, where Ramsey’s action against Schnabel is pending. The parties have consented to determination of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 21: 5/11/04 Consent to Jurisdiction.) For the reasons discussed below, Ramsey has not met its heavy burden of showing “special circumstances” to justify dismissing this first filed action, nor has Ramsey met the heavy burden of showing that an exception to the first filed rule or transfer to Kentucky under 28 U.S.C. § 1404(a) is appropriate “for the convenience of the parties and witnesses, in the interest of justice,” and therefore Ramsey’s motion to dismiss or transfer is DENIED. FACTS Plaintiff Gadi Schnabel, a resident of New York who works in the equity trading industry, developed a software program for an equity trading strategy model. (Dkt. No. 12: Schnabel Aff. ¶¶ 2-4.) Defendant Ramsey is an asset management firm specializing in systematic programs with its principal place of business in Louisville, Kentucky. (Dkt. No. 1: Compl. ¶ 3; Dkt. No. 27: Answer ¶ 3; Dkt. No. 2: Ramsey Motion Ex. 1: Neil Ramsey Aff. ¶ 2; Dkt. No. 2: Ramsey Motion Ex. 6: W.D. Ky. Compl. ¶ 2.) Ramsey employed Schnabel “to assist the company in developing an equity trading strategy model, later named G-Pairs.” (Ramsey Aff. ¶ 4.) Schnabel" }, { "docid": "16317933", "title": "", "text": "legal dispute is not engaged in forum shopping. See, e.g., J. Lyons & Co. v. Republic of Tea, Inc., 892 F.Supp. at 491. Schnabel resides in New York, developed his computer program in New York, and met with Ramsey in New York to discuss his employment contract. Schnabel’s choice of this forum does not suggest forum shopping. Finally, the Court notes that the parties’ briefs, and hence this Opinion, have focused on the declaratory judgment claim in Schnabel’s complaint. (Dkt. No. 1: Compl. ¶¶ 14-18.) Schnabel’s second and third causes of action, however, assert direct claims for breach of contract. (Compl.¶¶ 19-25.) This is even more reason to apply the first filed rule and stay the second, Kentucky action. Accordingly, the Court finds that Ramsey has failed to demonstrate “special circumstances” to justify an exception to the first filed rule. III. RAMSEY HAS FAILED TO SHOW THAT THE BALANCE OF CONVENIENCE FAVORS TRANSFERRING THE CASE TO KENTUCKY AS AN EXCEPTION TO THE FIRST FILED RULE OR PURSUANT TO § 1404 Ramsey also argues that the balance of convenience exception to the first-filed rule demonstrates that the first-filed rule should not apply, or in the alternative, that this Court should transfer the action to the Western District of Kentucky pursuant to 28 U.S.C. § 1404(a), considering the convenience of parties and the interests of justice. (Dkt. No. 3: Ramsey Br. at 6-13.) Balancing the competing interests, the second exception to the first filed rule, encompasses the same analysis as under a 28 U.S.C. § 1404(a) transfer motion: “Because the factors to consider are substantially identical in weighing the balance of convenience for application of the first-filed rale and in ruling on a motion to transfer venue, a single analysis of the factors will resolve both issues.” Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 178 F.Supp.2d 459, 465 (S.D.N.Y.2002); see, e.g., Raytheon Co. v. National Union Fire Ins. Co., 306 F.Supp.2d 346, 353 n. 40 (S.D.N.Y.2004); Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 56 (S.D.N.Y.2001); Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F.Supp.2d 433, 440 (S.D.N.Y.2000);" }, { "docid": "16317930", "title": "", "text": "possibility of litigation but did not specify any date or forum.); Employers Ins. of Wausau v. Prudential Ins. Co., 763 F.Supp. 46, 49 (S.D.N.Y.1991) (letter stating that defendant “ ‘hoped to avoid litigation’ ” was at best an attempt to initiate settlement negotiations and cannot reasonably be construed as a notice of suit.... Communications deemed to constitute notice of suit generally contain at least one of those elements,” ie., “mentioning a lawsuit, a tentative filing date or a forum.”). Ramsey contends that Schnabel’s filing of this lawsuit two days after receipt of what Ramsey considers a “notice” email from Ramsey constitutes anticipatory filing. (Dkt. No. 3: Ramsey Br. at 5). However, Ramsey’s November 3, 2003 email letter to Schnabel contains no explicit mention of a lawsuit, forum, deadline or filing date, and thus is insufficient to constitute notice of a lawsuit under the above cases. (Dkt. No. 2: Ramsey Motion Ex. 1: Ramsey Aff.: Att: 11/3/03 Letter). And while Ramsey’s October 29, 2003 email threatened that Ramsey would “take ‘all necessary action to protect [its] interests’ ” (see Dkt. No. 13: Schnabel Br. at 10), the Court considers such communication an attempt to initiate settlement negotiations rather than notice of suit. See, e.g., Employers Ins. of Wausau v. Prudential Ins. Co., 763 F.Supp. at 49 (letters stating intent to “pursue all available remedies” and “hoped to avoid litigation” were merely attempts to initiate settlement negotiations rather than notice of a lawsuit). Ramsey also argues that Schnabel’s mere commencement of a declaratory judgment itself establishes that Schnabel “engaged in forum shopping.” (Ramsey Br. at 6.) However, the first filed rule “has been applied in actions regardless of whether a declaratory judgment was sought in the initial action. Accordingly, the fact that [a party] sought declaratory judgment is not dispositive of the issue ... A party’s reasonable apprehension of a legal controversy may be sufficient to satisfy the requirements of a justiciable controversy without rising to the level of a direct threat of imminent litigation. Were this not the case, each time a party sought declaratory judg[]ment in one forum, a defendant" } ]

[ { "docid": "17744629", "title": "", "text": "to maintain the Project in good repair and condition. The Regulatory Agreement provided that “no change w[ould] be made in the basic rental or fair market rental unless approved by the Commissioner.” (Appendix to Defendant’s Motion to Dismiss, in Part, and for Summary Judgment, and Opposition' to Plaintiffs Motion for Summary Judgment on Liability (Def.’s App.) at 118-19.) Section 8 and Crest A’s HAP Contracts The U.S. Housing Act authorizes HUD to contract with owners of low-income housing to make rental assistance payments to defray the costs of tenants’ rents. 42 U.S.C. § 1437f(b)(l); Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1451 (Fed.Cir.1997). The rental subsidy program, commonly referred to as the “Section 8” program, is administered by means of “Housing Assistance Payments” (HAP) contracts. See 24 C.F.R. § 881.501(a); Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1425 (Fed.Cir.1997). Under the program, a low-income tenant’s rent is based on her income and ability to pay. 42 U.S.C. § 1437a(a). The amount of HUD’s monthly assistance payment to the owner represents the difference between the maximum monthly rental provided in a HAP contract and the rent that a family is required to pay under § 1437a(a) of the U.S. Housing Act. 42 U.S.C. § 1437f(e)(3)(A); 24 C.F.R. §§ 881.501(d)(1), 881.101(b) (2001). Crest A and HUD entered into a HAP contract in 1986 and later renewed it in 1991. (Def.’s App. at 148, 273.) By incorporating the provisions of the earlier HAP contract, the 1991 HAP contract provided in a section entitled “Rent Adjustments” that “[cjontract rents and utility allowances shall be adjusted by HUD in accordance with HUD regulations and procedures.” (PL’s Ex. 5.) The U.S. Housing Act establishes that HAP contracts “shall provide for adjustment annually or more frequently in the maximum monthly rents.” 42 U.S.C. § 1437f(e)(2)(A); see also Cisneros v. Alpine Ridge Group, 508 U.S. 10, 12, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993). The Act’s implementing regulation further provides that rent adjustments may be processed in one of two ways: contract rents may be adjusted annually, or more frequently at" } ]

[ { "docid": "22851254", "title": "", "text": "contract.”). The effect of finding privity of contract between a party and the United States is to find a waiver of sovereign immunity. See National Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1436 (Fed.Cir.1997) (National Leased Housing ). Whether a contract exists is a mixed question of law and fact. See Ransom, 900 F.2d at 244. Since the parties do not dispute the relevant facts, the privity issue reduces to a question of law, which we review de novo. Contract interpretation itself also is a question of law, which we review de novo. See Winstar, 64 F.3d at 1540; Massachusetts Bay Transp., Auth., v. United States, 129 F.3d 1226, 1231 (Fed.Cir.1997). A. We begin our analysis with the documents underlying the transactions at issue. In doing so, we focus on the documents relating to the four\" model plaintiffs, each of whom developed and operated a low-income rental housing project with a mortgage loan insured by HUD pursuant to Section 221(d)(3) or Section 236. See Cienega Gardens, 38 Fed. Cl. at 67. The transactions at issue were accomplished as follows: First, pursuant to 24 C.F.R. § 221.509(a) or § 236.1 (1970), each of the Owners received a “Commitment for Insurance of Advances” from the Federal Housing Commissioner, acting on behalf of the Secretary of HUD. The commitment provided that the Commissioner would endorse for insurance a mortgage note in a specified amount. The specified amount represented the total amount of advances that were to be made to the Owner by a specified lending institution pursuant to a loan agreement between the Owner and the institution. Thus, the commitment stated: “Upon completion of the project in accordance with the Drawings and Specifications the mortgage note will be finally endorsed for insurance to the extent of the advances of mortgage proceeds approved by the Commissioner, subject to reduction as provided in the Regulations.” The commitment further provided that “[t]he insurance endorsement will be subject to compliance with the requirements of the Regulations, [i.e., the HUD regulations in effect at the time] and the terms and conditions set forth” in the commitment." }, { "docid": "19045423", "title": "", "text": "public housing authority. Privity, defendant contends, is thus absent in this ease. For the reasons that follow, the court GRANTS, in part, defendant’s motion to dismiss. As will also be explained, the court GRANTS plaintiff leave to file an amended complaint raising a regulatory takings claim. I. BACKGROUND A brief recitation of the facts provides necessary context. In 1974, Congress amended the Housing Act of 1937 to create what is known as the Section 8 Housing Program (the Section 8 Program). See 42 U.S.C. § 1437f. That program provides federally-subsidized housing to millions of low-income tenants by authorizing, inter alia, the payment of rent subsidies to private owners and developers of low-income housing. Under the program, tenants make rental payments based upon their income and ability to pay; HUD then provides “assistance payments” to the private landlords to make up the difference between the tenant’s contribution and a “contract rent” agreed upon by the landlord and HUD. See 42 U.S.C. §§ 1437a(a), 1437f(e)(3)(A); Park Props. Assocs., L.P. v. United States, 82 Fed.Cl. 162, 164 (2008) (describing the program); Cuyahoga Metro. Hous. Auth. v. United States, 57 Fed.Cl. 751, 753 (2003) (Cuyahoga I) (same). Normandy Apartments, Ltd. (Normandy) owns and manages Normandy Apartments, a 208-unit complex constructed in Tulsa, Oklahoma, in 1968. Normandy financed the construction of this complex with a mortgage insured under the National Housing Act, 12 U.S.C. § 1715Z. Effective October 1, 1992, Normandy and “the United States of America, acting through [HUD]” entered into a HAP contract, with the acting director of HUD’s Tulsa office signing the contract on behalf of the United States. Although this original HAP contract expired in 1997, it was periodically renewed throughout the period in question. In 2000, Normandy sought to prepay its mortgage. On May 23, 2000, it entered into a “Use Agreement” with HUD under which Normandy was allowed to prepay its HUD-insured mortgage in exchange for its promise to maintain the property as low-income housing for a period of time. Various statutes then in force required the execution of agreements like this as a precondition for HUD to allow" }, { "docid": "3883967", "title": "", "text": "the project will include families with a broad range of incomes and will avoid concentrations of lower income and deprived families with serious social problems____ 42 U.S.C. § 1437d(c)(4). This section is not, however, applicable to the section 8 program: Sections 1437c(e) and 1437d of this title, and any other provisions of this chapter which are inconsistent with the provisions of this section shall not apply to contracts for assistance entered under this section. 42 U.S.C. § 1437f(h). Finally, RIHMFC points to the unrevoked HUD income mix regulation, supra, which requires that each state housing agency “will use its best efforts to achieve leasing by owners to families with a range of incomes so that the average income of all families in occupancy is at or above 40 percent of the median income in the area.” 24 C.F.R. § 883.704(c). Noting that the congressional conference committee ordered the Secretary of HUD to rescind the nearly identical regulation applicable to individual owners, 24 C.F.R. § 880.603, see supra note 4, the Corporation argues that such an explicit directive would also be necessary to invalidate the regulation applicable to state housing agencies. HUD has yet to rescind either of the regulations. RIHMFC concludes therefore that it can properly rely on the income mix regulation in ordering a high income priority. This contention has some force in that state agencies are supposed to conform to HUD-imposed provisions when contracting with individual owners. 42 U.S.C. § 1437f(d)(1)(A). The Secretary’s tardiness in developing new regulations implementing the 1981 amendments thus leaves RIHMFC in an uneasy position. Nonetheless, we think the district court was reasonable to conclude that the tenor of the 1981 amendments, as well as the conference committee’s flat disapproval of giving families “a priority for occupancy by virtue of their income,” ruled out tenant selection policies of the kind it enjoined in the third part of its injunction. Since “a rule out of harmony with the statute, is a mere nullity,” Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1936), RIHMFC cannot find refuge" }, { "docid": "19045424", "title": "", "text": "(describing the program); Cuyahoga Metro. Hous. Auth. v. United States, 57 Fed.Cl. 751, 753 (2003) (Cuyahoga I) (same). Normandy Apartments, Ltd. (Normandy) owns and manages Normandy Apartments, a 208-unit complex constructed in Tulsa, Oklahoma, in 1968. Normandy financed the construction of this complex with a mortgage insured under the National Housing Act, 12 U.S.C. § 1715Z. Effective October 1, 1992, Normandy and “the United States of America, acting through [HUD]” entered into a HAP contract, with the acting director of HUD’s Tulsa office signing the contract on behalf of the United States. Although this original HAP contract expired in 1997, it was periodically renewed throughout the period in question. In 2000, Normandy sought to prepay its mortgage. On May 23, 2000, it entered into a “Use Agreement” with HUD under which Normandy was allowed to prepay its HUD-insured mortgage in exchange for its promise to maintain the property as low-income housing for a period of time. Various statutes then in force required the execution of agreements like this as a precondition for HUD to allow a property-owner to prepay its mortgage. See Independence Park Apartments v. United States, 449 F.3d 1235, 1248 (Fed.Cir.2006) (explaining the role played by such agreements). The agreement was signed by one of Normandy’s partners and the Director of HUD’s Oklahoma City Multifamily Center. Under the Use Agreement, Normandy was to reserve its units for low-income tenants under HUD’s Section 8 Program until June 1, 2009. On October 1, 2004, Normandy entered into a HAP Basic Renewal Contract (the HAP Renewal Contract). This contract listed the Oklahoma Housing Finance Agency (OHFA) as the contract administrator and was signed by OHFA’s Executive Director and one of Normandy’s partners. HUD was neither a named party nor a signatory on the renewal contract. The renewal contract stated that “except as specifically modified by the Renewal Contract, all provisions of the Expiring Contract are renewed;” it extended HAP payments to Normandy for five years. The aforementioned contracts and HUD’s regulations required Normandy’s Section 8 units to be kept “decent, safe, sanitary, and in good repair” at all times and contemplated" }, { "docid": "9906910", "title": "", "text": "also Park Properties Assocs., L.P. v. United States, 74 Fed.Cl. 264, 266-69, 273-74 (2006) (providing extensive background on HUD rent adjustments, and finding that HUD breached its HAP contracts with the claimants by failing to make automatic annual rent adjustments); Cuyahoga Metro. Hous. Auth. v. United States, 57 Fed.Cl. 751, 759 n. 12 (2003) (discussing Brighton Vill. Assocs. v. United States, 52 F.3d at 1061). Based on the foregoing discussion, defendant has not persuaded the court that it is without jurisdiction to review Englewood’s rental increase claims. Defendant also argues that the August 21, 2001 request for a rental increase was “post-default,” essentially that Englewood had failed to properly maintain South Pointe and, therefore, was not eligible to receive a rental increase. The request for a rent increase did occur after HUD’s April 9, 2001 Notice of Default and May 16, 2001 Continuing Notice of Default, but the matter of default was not raised in Mr. Hinsberger’s September 6, 2001 favorable response to Mr. Samuelson’s request for a rent increase, which only indicated that Mr. Hayes should sign the request. In any event, the court concluded earlier that the default of Englewood was without merit and, therefore, does not justify breach of contract. Nor should the invalidated default provide a basis to deny a proper rent increase. The court, however, is concerned about the failure of either party to produce for the record a complete and properly signed request for a rent increase. After all of the above discussion, this would seem to be a basic, threshold requirement. The parties, therefore, shall consult, and be prepared to address the rental increase claim in light of the court’s above discussion at a status conference which will be scheduled by separate order. Englewood’s Claim for Energy Reimbursement at South Pointe On April 20, 2001, HUD issued guidance for the reimbursement of higher energy costs. The record contains a copy of an energy reimbursement form signed and dated August 6, 2001. Mr. Hinsberger testified that the deadline for submission of the energy reimbursement request was September, 2001, but without citing the source for" }, { "docid": "16202872", "title": "", "text": "(“The effect of finding privity of contract between a party and the United States is to find a waiver of sovereign immunity.”); Katz v. Cisneros, 16 F.3d 1204, 1210 (Fed.Cir.1994) (“Absent privity between [plaintiffs] and the government, there is no case.”). In an attempt to establish privity of contract, and thus a waiver of sovereign immunity, Appellants allege two distinct errors as to the Court of Federal Claims’s decision on their breach of contract claims. First, Appellants argue that the Insurance Commitment was a legally binding offer that was accepted by the Appellants’ execution of a Mortgagor’s Certificate. Second, Appellants contend they were intended third-party beneficiaries of the contracts between HUD and the lenders. 1. Mortgagor’s Certificate The specific question before us is whether the agreements framed by the Insurance Commitment and the Mortgagor’s Certificate (each of which was in a form approved by HUD) gave rise to privity of contract between HUD and the Owners with respect to the prepayment terms. This court, in Cienega IV, stated-that “in order to find privity of contract, we must find on the part of HUD ‘the type of direct, unavoidable contractual liability that is necessary to trigger a waiver of sovereign immunity, the inevitable result of finding privity of contract.’” Cienega IV, 194 F.3d at 1241 (quoting Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1426 (Fed.Cir.1997)). Applying this standard to a virtually identical set of facts and agreements, this court, in Cienega IV, determined it necessary to “start from the premise that the United States, i.e., HUD, was a named party to only one contract in connection with each of the relevant projects, that contract being the regulatory agreement.” 194 F.3d at 1241-42. The Regulatory Agreement did not incorporate by reference any other agreement, including the Note containing the prepayment terms. Id. at 1242. “Although HUD did provide its insurance endorsement, it was not expressly made a party to any [Note].” Id. The court went on to state that while the Note and the Regulatory Agreement were part of the same transaction, “each document stands alone and is unambiguous" }, { "docid": "3091410", "title": "", "text": "Housing Authority, 806 F.Supp. 515, 527 (E.D.Pa. 1992); Henry Horner Mothers Guild v. Chicago Housing Authority, 780 F.Supp. 511, 515 (N.D.Ill.1991); Tinsley v. Kemp, 750 F.Supp. 1001, 1012 (W.D.Mo.1990); Concerned Tenants of Father Panik Village v. Pierce, 685 F.Supp. 316, 323 (D.Conn.1988). The Section 8 program, however, is directed at securing quality housing for low-income families. In that sense, the tenants of the low-income housing are more appropriately characterized as the “intended beneficiaries” of the ACCs than are the project owners. In any event, a determination as to whether a particular individual or class of individuals is a third-party beneficiary of a contract must be made on an individual-by-individual or class-by-class basis. Before declaring that any individual or class of individuals is a third-party beneficiary, a court would have to determine whether allowing such a third-party beneficiary suit would effectuate the intent of the parties to the contract. Herein, assuming the district court decisions are correct, a determination that allowing tenants to bring a certain type of suit against HUD would effectuate the intent of the parties to the ACCs does not mean that allowing a different class of individuals, i.e., the project owners, to bring a different type of suit against HUD, ie., a suit for increased periodic rent adjustments, would also effectuate the parties’ intent. To the contrary, as explained above, the parties’ intent as exhibited in the provisions of the ACCs points against allowing direct suits against HUD by the project owners where the prerequisites of Section 2.16 do not apply. Thus, for the reasons set forth above, those plaintiffs that entered HAP contracts with the PHAs rather than directly with HUD may not bring a breach of contract suit against defendant because those plaintiffs lack privity of contract with HUD and are not third-party beneficiaries of the ACCs. V. A. Pursuant to Sections II through IV, supra, the plaintiffs remaining in this action are those plaintiffs that entered HAP contracts directly with HUD. The parties’ cross-motions for summary judgment raise a series of issues with respect to these plaintiffs. The first issue the court will address" }, { "docid": "17537542", "title": "", "text": "OPINION ALLEGRA, Judge. This contract case is before the court on various pending motions. Plaintiffs entered rent subsidy agreements with the United States Department of Housing and Urban Development (HUD) known as “Housing Assistance Payment” (HAP) contracts. They allege that the government repudiated those contracts in 1994, when Congress amended the controlling statute to alter the way in which rent increases were to be determined. Defendant objects to the plaintiffs’ interpretation of the relevant contracts and, inter alia, raises statute of limitations issues. While the court agrees with the latter assertion and that not all of plaintiffs’ breach claims are well-taken, as to the main contention, it concludes, relying on its prior decision in Cuyahoga Metro. Hous. Auth. v. United States, 57 Fed.Cl. 751, 753-55 (2003) (Cuya-hoga I), that Congress, indeed, effectuated a repudiation of the relevant HAP contracts in modifying the mechanism for determining rent increases. I. BACKGROUND In 1974, Congress amended the Housing Act of 1937 (Housing Act) to create what is known as the Section 8 housing program. See 42 U.S.C. § 1437f. Under the program, tenants make rental payments based upon their income and ability to pay; HUD then makes “assistance payments” to the private landlords to make up the difference between the tenant’s contribution and a “contract rent” agreed upon by the landlord and HUD. 42 U.S.C. §§ 1437a(a), 1437f(c)(3); see also Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1425 (Fed.Cir.1997) (describing the program); Cuyahoga I, 57 Fed.Cl. at 753-55 (same). In 1978 and 1980, three transactions occurred between plaintiffs (or their predecessors in interest) and HUD: • On September 27, 1978, Jerome Z. Ginsburg d/b/a “Park Property Associates” and HUD entered into a HAP Contract for LaMartine Terrace (the LaMartine HAP Contract). The effective date of the HAP Contract is June 1, 1979. On July 1, 1996, Park Property Associates’ interest in the HAP Contract was transferred to Park Properties Associates, L.P., a plaintiff in this case. • On September 27, 1978, Jerome Z. Ginsburg d/b/a “Valentine Property Associates” and HUD entered into a HAP contract for Valentine’s Lane Hill Apartments" }, { "docid": "19045443", "title": "", "text": "See Senate Manor Props., 315 Fed.Appx. at 238 (rejecting reliance on this same “renewal” theory). Second, Normandy asserts that HUD was a party to the 2004 HAP Renewal Contract because OHFA signed the contract as HUD’s agent. But, nothing in the 2004 contract hints at such an agency relationship — indeed section 12.c of the contract explicitly provides to the contrary, stating that “[i]f the contract administrator is a PHA acting as a Contract Administrator pursuant to an annual contributions contract (‘ACC’) between the PHA and HUD, the Contract Administrator is not the agent of HUD.” Despite this, Normandy asks this court to imply an agency relationship between OHFA and HUD because the 2004 contract incorporates various HUD requirements, was funded by HUD, and anticipates continuing supervision by that agency. In fact, this two-tiered scheme — under which HUD contracts with a PHA which, in turn, contracts with a project owner — has long been a feature of the Housing Act. See 42 U.S.C. § 1437f(b) (2004); see also Nat’l Leased Hous. Ass’n v. United States, 32 Fed.Cl. 454, 456-57 (1994). Cases examining this schema have repeatedly held that it does not give rise to an agency arrangement — that “[a] grant of benefits and subsequent oversight by HUD is insufficient to establish a contractual obligation between [a developer] and the government.” Katz, 16 F.3d at 1210. This is true even if the “the Federal Government has intimate control over a project, including prior approval of plans and costs,” Marshall N. Dana Constr., Inc. v. United States, 229 Ct.Cl. 862, 864, 1982 WL 26554 (1982), and, conversely, the state agency “ ‘is acting merely as a conduit for the federal funds.’ ” Katz, 16 F.3d at 1210 (quoting Marshall N. Dana Constr., 229 Ct.Cl. at 864); see also Brighton Vill. Assocs. v. United States, 52 F.3d 1056, 1059-60 (Fed.Cir.1995) (“HUD’s grant of benefits and subsequent oversight of the local administering agency in Katz did not establish a contractual relationship with the builder”); Nat’l Leased Hous. Ass’n, 32 Fed.Cl. at 457. Applying these principles, various decisions hold that the same two-tiered" }, { "docid": "9520989", "title": "", "text": "74 S.Ct. at 405 (emphasis added). Similarly, in Western Union Telegraph Co. v. United States, 66 Ct.Cl. 38, 1928 WL 3062 (1928), the United States could not avoid liability. There was no question that the Government was hable. Id. 66 Ct.Cl. at 50 (“[t]he defendant [United States] admits it is hable”). The only question was the amount of liability. Id, at 49. In the case before us, the liability of the United States, if any, is contingent upon their acquiescence. This is not the direct, uncontested liability that is required to fit within this narrow exception to the general rule that the Court of Federal Claims does not have jurisdiction over sub-contractor’s claims against the United States. The only authority from this court on point supports our conclusion. In Katz v. Cisneros, 16 F.3d 1204 (Fed.Cir.1994), a property owner who had entered into a HAP contract with a PHA sued HUD in the United States district court of Massachusetts for, inter alia, breach of contract. The district court transferred the contract claim to the Court of Federal Claims. The property owner filed an interlocutory appeal with this court. The Katz court reversed and remanded, concluding that the Court of Federal Claims did not have jurisdiction because, inter alia, the property owner did not have a contract with the United States, the “sine qua non of jurisdiction in the Court of Federal Claims.” Id. at 1210. Katz also controls over appellants’ alternative theory of privity — third party beneficiary. Appellants argue that even if they are not in privity with the United States through an agency relationship, they nonetheless have privity as third party beneficiaries of the ACCs between the United States and the PHAs. The trial court concluded that the third party beneficiaries of the ACCs are the tenants and not the property owners. The Katz court agreed — “If there is a third party beneficiary at all, it is probably the low-income tenants,” id., as do we. Appellants cite no cases in which property owners have been held to be third party beneficiaries of the ACCs. The only cases" }, { "docid": "16202878", "title": "", "text": "Beneficiary Appellants also argue that they are third-party beneficiaries to the agreements between HUD and the lenders. While Appellants could establish privity of contract if they are intended third-party beneficiaries of a contract with the United States, First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed.Cir.1999), in order to prove third-party beneficiary status, Appellants must demonstrate that the contract not only reflects an express or implied intention to benefit the party, but that it reflects an intent to benefit the party directly, Castle v. United States, 301 F.3d 1328, 1338 (Fed.Cir.2002), petition for cert. filed Dec. 16, 2002. This direct benefit requirement reflects the reality that third-party beneficiary status is an “exceptional privilege.” See Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.2001), amended on reh’g, 273 F.3d 1072 (Fed.Cir.2001) (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912)). None of the alleged agreements between the lenders and HUD contains any explicit evidence showing that HUD or the lenders intended to benefit the Owners directly. Appellants contend they were the direct intended third-party beneficiaries by virtue of the Insurance Commitment between HUD and the lenders because without Appellants there would be no other reason for HUD’s agreement to insure each Owner’s repayment of the loan. At best, this shows that Appellants were indirect beneficiaries of the Insurance Commitment. The primary, direct beneficiary of the Insurance Commitment was the public. See Katz, 16 F.3d at 1210 (“If there is a third party beneficiary at all, it is probably the low-income tenants for whom the housing was ultimately intended.”). Appellants have not pointed to any persuasive evidence showing they were direct intended beneficiaries of the Insurance Commitment. Accordingly, we hold that Appellants were not third-party beneficiaries of the Insurance Commitment between HUD and the lenders. B. Regulatory Takings Appellants also appeal the Court of Federal Claims’s decision denying their claims that LIHPRHA effected a taking of a protectible property interest in their land and their contracts without just compensation. The Fifth Amendment provides, in" }, { "docid": "1546293", "title": "", "text": "Housing and Urban Development (HUD) to provide low-income housing under the United States Housing Act of 1937 (the Housing Act of 1937). Plaintiff asserts that its rights under these contracts were repudiated by the Congress in 1994, when it amended the Housing Act to alter how rent subsidies were to be determined. According to plaintiff, that repudiation eventually ripened into a series of contract breaches. Not so, defendant responds, asseverating that the particular rights in question never existed and thus could neither be repudiated nor breached. Within this context, defendant aggressively invokes one of the sovereign defenses mentioned above — the labyrinthine unmistakability doctrine. Nonetheless, for the reasons that follow, the court holds that the United States, indeed, breached the contracts in question and is liable for that breach. I. FACTUAL AND STATUTORY BACKGROUND In 1974, Congress amended the Housing Act of 1937 to create what is known as the Section 8 housing program. See 42 U.S.C. § 1437f. That program provides federally subsidized housing to millions of low income tenants by authorizing, inter alia, the payment of rent subsidies to private owners and developers of low-income housing. Under the program, tenants make rental payments based on their income and ability to pay; HUD then makes “assistance payments” to the private landlords to make up the difference between the tenant’s contribution and a “contract rent” agreed upon by the landlord and HUD. 42 U.S.C. §§ 1437a(a), 1437f(c)(3)(A); see also Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1425 (Fed.Cir.1997) (describing the program); Crest A Apts. Ltd. II v. United States, 52 Fed.Cl. 607, 609 (2002) (same). In 1978 and 1979, CMHA and HUD entered into three Housing Assistance Payments (“HAP”) contracts under the Section 8 housing program. The framework for these contracts was governed, in part, by 42 U.S.C. § 1437f(c)(l), under which, an initial maximum monthly contract rent was established for each dwelling unit. As originally enacted, 42 U.S.C. § 1437f(c)(2) provided for adjustments in this maximum monthly rent thusly— (A) The assistance contract shall provide for adjustment annually or more frequently in the maximum monthly rents" }, { "docid": "1546316", "title": "", "text": "on shoddy comparisons, their remedy is to challenge the particular study, not to deny HUD’s authority to make comparisons.” Id. at 20-21, 113 S.Ct. 1898; see also Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1431 (Fed.Cir.1997). Other cases proceed similarly from the notion that the critical statutory language here places on HUD, and only on HUD, the burden of coming forward to show that a particular adjustment would violate the limitation. See, e.g., Acacia Villa, 36 Fed.Cl. at 280-81; Park Village Apts. v. United States, 32 Fed.Cl. 441, 453 (1994), aff'd (per curiam), 152 F.3d 943 (Fed.Cir.1998), cert. denied, 525 U.S. 962, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998); Nat’l Leased Hous. Ass’n v. United States, 22 Cl. Ct. 649, 656-60 (1991), aff'd, 105 F.3d 1423 (Fed.Cir.1997). It is, of course, true that unlike in Alpine Ridge, the issue here is not whether HUD may use comparability studies to limit automatic adjustments; nor, as in Park Village, whether HUD might use such studies to reduce preexisting rents; nor, as in Acacia Vila, whether HUD must employ such studies within the year the automatic adjustment is owed. Yet, the construction of the overall limitation reflected in these cases represents, in this court’s view, its most natural reading. Indeed, that this language gave rise to so many bona fide disputes concerning HUD’s role in setting rents illustrates just how far the government seeks to elasticize those same words in arguing not that HUD may use such comparability studies to limit the automatic adjustments, but that the property owners must use such studies to qualify for them. In the court’s view, this conceptualization stretches the language of the contracts and the underlying statute well past its breaking point. Of course, unlike normal contractual undertakings, the contracts here had their source in legislation passed by the Congress, requiring the court to consider that legislation in construing the contracts. See, e.g., Bennett v. Kentucky Dept. of Educ., 470 U.S. 656, 669, 105 S.Ct. 1544, 84 L.Ed.2d 590 (1985); Barseback Kraft AB, 121 F.3d at 1480-81 (construing an agreement in light of the" }, { "docid": "19045444", "title": "", "text": "States, 32 Fed.Cl. 454, 456-57 (1994). Cases examining this schema have repeatedly held that it does not give rise to an agency arrangement — that “[a] grant of benefits and subsequent oversight by HUD is insufficient to establish a contractual obligation between [a developer] and the government.” Katz, 16 F.3d at 1210. This is true even if the “the Federal Government has intimate control over a project, including prior approval of plans and costs,” Marshall N. Dana Constr., Inc. v. United States, 229 Ct.Cl. 862, 864, 1982 WL 26554 (1982), and, conversely, the state agency “ ‘is acting merely as a conduit for the federal funds.’ ” Katz, 16 F.3d at 1210 (quoting Marshall N. Dana Constr., 229 Ct.Cl. at 864); see also Brighton Vill. Assocs. v. United States, 52 F.3d 1056, 1059-60 (Fed.Cir.1995) (“HUD’s grant of benefits and subsequent oversight of the local administering agency in Katz did not establish a contractual relationship with the builder”); Nat’l Leased Hous. Ass’n, 32 Fed.Cl. at 457. Applying these principles, various decisions hold that the same two-tiered structure presented by the relevant contract here does not meet the privity requirement. And the court sees no reason to reach a different result here. Nor does plaintiffs third and final contention — that the requisite privity for its contract claim comes from the Use Agreement it entered into with HUD in 2000 — fare any better. Defendant does not deny that the Secretary of HUD was a party to that agreement and that the agreement was effective during the years in question. But, plaintiff is simply wrong in suggesting that the Use Agreement incorporated all the terms of the pending and future HAP contracts. In particular, unlike the HAP contracts, the Use Agreement makes no assurances that rent subsidies will be provided if Normandy maintains the property in safe and habitable condition. Rather, in terms of subsidies, the agreement merely recites, in section 4(a), that “[f]or Apartments covered by a HAP contract, rent increases shall be governed by Section 8 requirements for such contract, including any future HUD changes that govern such contract.” The" }, { "docid": "1546294", "title": "", "text": "the payment of rent subsidies to private owners and developers of low-income housing. Under the program, tenants make rental payments based on their income and ability to pay; HUD then makes “assistance payments” to the private landlords to make up the difference between the tenant’s contribution and a “contract rent” agreed upon by the landlord and HUD. 42 U.S.C. §§ 1437a(a), 1437f(c)(3)(A); see also Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1425 (Fed.Cir.1997) (describing the program); Crest A Apts. Ltd. II v. United States, 52 Fed.Cl. 607, 609 (2002) (same). In 1978 and 1979, CMHA and HUD entered into three Housing Assistance Payments (“HAP”) contracts under the Section 8 housing program. The framework for these contracts was governed, in part, by 42 U.S.C. § 1437f(c)(l), under which, an initial maximum monthly contract rent was established for each dwelling unit. As originally enacted, 42 U.S.C. § 1437f(c)(2) provided for adjustments in this maximum monthly rent thusly— (A) The assistance contract shall provide for adjustment annually or more frequently in the maximum monthly rents for units covered by the contract to reflect changes in the fair market rentals established in the housing area for similar types and sizes of dwelling units or, if the Secretary determines, on the basis of a reasonable formula. * * * * * * (C) Adjustments in the maximum rents as hereinbefore provided shall not result in material differences between the rents charged for assisted and comparable unassisted units, as determined by the Secretary. 42 U.S.C. § 1437f(c)(2)(A) and (C) (1982). The HAP contracts in question implemented these provisions in a two-fold fashion: (i) providing that adjustment of rents will be made annually on the basis of a reasonable formula, but (ii) stipulating as an “overall limitation” that, notwithstanding any other provision of the contract, adjustments shall not produce material differences between the rents at comparable assisted and unassisted units. See Cisneros v. Alpine Ridge Group, 508 U.S. 10, 13, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993) (describing a similar contract provision). The first of these requirements — that of the annual adjustment —" }, { "docid": "9906909", "title": "", "text": "adjustment regulations did not contain the same imperative of the statute. The operative regulation stated that contract rents may be adjusted annually, at HUD’s option, either (1) on the basis of a written request for a rent increase submitted by the owner ... or (2) by applying, on each anniversary date of the contract, the applicable automatic annual adjustment factor [AAAF] most recently published by HUD in the Federal Register. Brighton Vill. Assocs. v. United States, 52 F.3d at 1061 (quoting 24 C.F.R. § 886.312(b) (1994)) (emphasis, omission, and acronym added by the Federal Circuit) The Federal Circuit in Brighton Village read the statute as providing for annual adjustments and, giving effect to the statutory language, read HUD’s regulatory language as providing that HUD may choose the method of annual adjustment. Brighton Vill. Assocs. v. United States, 52 F.3d at 1061. “By failing to make [rent] adjustments during 1985 and 1986, HUD breached the HAP contract.” Id. This quoted language in HUD’s regulations remained unchanged in the 2000 regulations, which are applicable to Englewood. See also Park Properties Assocs., L.P. v. United States, 74 Fed.Cl. 264, 266-69, 273-74 (2006) (providing extensive background on HUD rent adjustments, and finding that HUD breached its HAP contracts with the claimants by failing to make automatic annual rent adjustments); Cuyahoga Metro. Hous. Auth. v. United States, 57 Fed.Cl. 751, 759 n. 12 (2003) (discussing Brighton Vill. Assocs. v. United States, 52 F.3d at 1061). Based on the foregoing discussion, defendant has not persuaded the court that it is without jurisdiction to review Englewood’s rental increase claims. Defendant also argues that the August 21, 2001 request for a rental increase was “post-default,” essentially that Englewood had failed to properly maintain South Pointe and, therefore, was not eligible to receive a rental increase. The request for a rent increase did occur after HUD’s April 9, 2001 Notice of Default and May 16, 2001 Continuing Notice of Default, but the matter of default was not raised in Mr. Hinsberger’s September 6, 2001 favorable response to Mr. Samuelson’s request for a rent increase, which only indicated that Mr." }, { "docid": "17537543", "title": "", "text": "1437f. Under the program, tenants make rental payments based upon their income and ability to pay; HUD then makes “assistance payments” to the private landlords to make up the difference between the tenant’s contribution and a “contract rent” agreed upon by the landlord and HUD. 42 U.S.C. §§ 1437a(a), 1437f(c)(3); see also Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1425 (Fed.Cir.1997) (describing the program); Cuyahoga I, 57 Fed.Cl. at 753-55 (same). In 1978 and 1980, three transactions occurred between plaintiffs (or their predecessors in interest) and HUD: • On September 27, 1978, Jerome Z. Ginsburg d/b/a “Park Property Associates” and HUD entered into a HAP Contract for LaMartine Terrace (the LaMartine HAP Contract). The effective date of the HAP Contract is June 1, 1979. On July 1, 1996, Park Property Associates’ interest in the HAP Contract was transferred to Park Properties Associates, L.P., a plaintiff in this case. • On September 27, 1978, Jerome Z. Ginsburg d/b/a “Valentine Property Associates” and HUD entered into a HAP contract for Valentine’s Lane Hill Apartments (the Lane Hill HAP Contract). The Lane Hill HAP contract was executed in two stages: (i) stage 1 became effective on January 2, 1980; and (ii) stage 2 became effective on February 19, 1980. On July 1, 1996, Valentine Property Associates’ interest in the HAP Contract was transferred to Valentine Associates, L.P., a plaintiff in this case. • On September 29, 1980, St. John’s I Associates, L.P. (St. John’s), also a plaintiff herein, and HUD entered into a HAP contract for St. John’s Phase I (the St. John’s HAP Contract). The St. John’s HAP Contract was executed in three stages: (i) stage 1 became effective on July 1,1982; (ii) stage 2 became effective on September 22, 1982; and (iii) stage 3 became effective on December 15, 1982. The framework for these contracts is governed, in part, by 42 U.S.C. § 1437f(c)(l), under which an initial, maximum monthly contract rent was established for each dwelling unit. As originally enacted, 42 U.S.C. § 1437f(c)(2) provided for adjustments in this maximum monthly rent thusly— (A) The assistance contract" }, { "docid": "1546315", "title": "", "text": "The rent adjustments indicated by the automatic adjustment factors remain the presumptive adjustment called for under the contract. It is only those presumably exceptional cases where the Secretary has reason to suspect that the adjustment factors are resulting in materially inflated rents that a comparability study would ensue. Because the automatic adjustment factors are themselves geared to reflect trends in the local or regional housing market, theoretically it should not be often that the comparability would suggest material differences between Section 8 and private-market rents. 508 U.S. at 19-20, 113 S.Ct. 1898. Both the Court’s reference to comparability studies being invoked only in “exceptional eases” and to automatic adjustments being “presumptive” clash with the notion, advanced by the government here, that the same contract provision can be construed to require property owners to provide comparability studies as a precondition to receiving an “automatic” adjustment. Further indication that the Court believed that HUD was required to conduct the relevant studies may be found in its admonition that “if respondents have been denied formula-based rent increases based on shoddy comparisons, their remedy is to challenge the particular study, not to deny HUD’s authority to make comparisons.” Id. at 20-21, 113 S.Ct. 1898; see also Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1431 (Fed.Cir.1997). Other cases proceed similarly from the notion that the critical statutory language here places on HUD, and only on HUD, the burden of coming forward to show that a particular adjustment would violate the limitation. See, e.g., Acacia Villa, 36 Fed.Cl. at 280-81; Park Village Apts. v. United States, 32 Fed.Cl. 441, 453 (1994), aff'd (per curiam), 152 F.3d 943 (Fed.Cir.1998), cert. denied, 525 U.S. 962, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998); Nat’l Leased Hous. Ass’n v. United States, 22 Cl. Ct. 649, 656-60 (1991), aff'd, 105 F.3d 1423 (Fed.Cir.1997). It is, of course, true that unlike in Alpine Ridge, the issue here is not whether HUD may use comparability studies to limit automatic adjustments; nor, as in Park Village, whether HUD might use such studies to reduce preexisting rents; nor, as in Acacia Vila," }, { "docid": "22851253", "title": "", "text": "government urges, LAR-SO would have limited the rents that the Owners could have charged after prepayment, thereby reducing the amount of lost profits suffered as a result of any breach of contract. Because we resolve this appeal in favor of the government based on the issue of contractual liability, we do not address the government’s second and third arguments. II. Under the Tucker Act, the Court of Federal Claims has jurisdiction over claims based on “any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (1994). We have stated that “[t]o maintain a cause of action pursuant to the Tucker Act that is based on a contract, the contract must be between the plaintiff and the government .... ” Ransom v. United States, 900 F.2d 242, 244 (Fed.Cir.1990). In other words, there must be privity of contract between the plaintiff and the United States. See Erickson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed.Cir.1984) (“The government consents to be sued only by those with whom it has privity of contract.”). The effect of finding privity of contract between a party and the United States is to find a waiver of sovereign immunity. See National Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1436 (Fed.Cir.1997) (National Leased Housing ). Whether a contract exists is a mixed question of law and fact. See Ransom, 900 F.2d at 244. Since the parties do not dispute the relevant facts, the privity issue reduces to a question of law, which we review de novo. Contract interpretation itself also is a question of law, which we review de novo. See Winstar, 64 F.3d at 1540; Massachusetts Bay Transp., Auth., v. United States, 129 F.3d 1226, 1231 (Fed.Cir.1997). A. We begin our analysis with the documents underlying the transactions at issue. In doing so, we focus on the documents relating to the four\" model plaintiffs, each of whom developed and operated a low-income rental housing project with a mortgage loan insured by HUD pursuant to Section 221(d)(3) or Section 236. See Cienega Gardens, 38 Fed. Cl. at 67. The transactions" }, { "docid": "16202873", "title": "", "text": "we must find on the part of HUD ‘the type of direct, unavoidable contractual liability that is necessary to trigger a waiver of sovereign immunity, the inevitable result of finding privity of contract.’” Cienega IV, 194 F.3d at 1241 (quoting Nat’l Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1426 (Fed.Cir.1997)). Applying this standard to a virtually identical set of facts and agreements, this court, in Cienega IV, determined it necessary to “start from the premise that the United States, i.e., HUD, was a named party to only one contract in connection with each of the relevant projects, that contract being the regulatory agreement.” 194 F.3d at 1241-42. The Regulatory Agreement did not incorporate by reference any other agreement, including the Note containing the prepayment terms. Id. at 1242. “Although HUD did provide its insurance endorsement, it was not expressly made a party to any [Note].” Id. The court went on to state that while the Note and the Regulatory Agreement were part of the same transaction, “each document stands alone and is unambiguous on its face.” Id. at 1243. This court determined privity of contract did not exist, because none of the relevant documents in those transactions expressly contained the prepayment terms or listed HUD and the Owners as parties. The “new theory” asserted by Appellants in this case does not change this analysis. The only “new” document that Appellants allege, in combination with the Insurance Commitment, creates privity of contract is the Mortgagor’s Certificate. The Mortgagor’s Certificate also does not contain any reference to terms regarding prepayment. Thus, under this court’s holding in Cienega IV, Appellants’ privity of contract theory based on the Insurance Commitment and the Mortgagor’s Certificate fails. As the Court of Federal Claims stated in its decision: It is true that the Federal Circuit did not address the Mortgagor’s Certificate in its opinion. Considering the nature and substance of the HUD Commitment, however, it is clear that bringing the Mortgagor’s Certificate into the analysis could no more establish prepayment privity between HUD and the plaintiffs than the HUD Commitment could standing alone. The HUD" } ]

[ { "docid": "15838423", "title": "", "text": "303(b)(1) are contingent claims; the bankruptcy judge correctly held that Chase’s claim did not fall into that category. Still we have difficulty in believing that Congress intended that a debtor should be found to be generally not paying its debts as they become due under § 303(h)(1) or that a claim qualifies under § 303(b), when the claim is subject to serious dispute. As said in In re Nar-Jor Enterprises Corp., 6 B.R. 584, 586 (Bkrtcy.S.D.Fla.1980), the bankruptcy courts were “not designed or intended to be the forum for trying isolated disputed claims.” But here, after having been afforded the opportunity, B.D.I. failed to demonstrate to the bankruptcy • court what ground it had for disputing Chase’s claim. In order to qualify a claim as a basis for seeking involuntary bankruptcy, a claimant need not make out a case warranting summary judgment although in fact Chase came close to this. It is sufficient to establish, as Chase did here, that there are good grounds for the claim and that no defenses have been asserted in substantia-ble form. Whether less may suffice we need not decide. Both parties have discussed at length what appears to be the only appellate decision on the treatment of disputed claims for the purpose here in question, Matter of Covey, 650 F.2d 877 (7 Cir.1981). In Covey the late Judge Sprecher developed an intricate balancing formula, designed to afford a rule of decision in all cases, with respect to the inclusion of disputed debts in the “generally not paying debts” determination. Apart from the question whether the treacherously simple statutory language will support so elaborate a gloss, we think it a bit early in the day to essay a “guideline” opinion on this subject. As Justice Harlan said, dissenting in Sanders v. United States, 373 U.S. 1, 32, 83 S.Ct. 1068, 1085, 10 L.Ed.2d 148 (1963), such opinions “suffer the danger of pitfalls that usually go with judging in a vacuum. However carefully written, they are apt in their application to carry unintended consequences which once accomplished are not always easy to repair.” We prefer to" } ]

[ { "docid": "19367905", "title": "", "text": "re Tarletz, 21 B.R. 787, 791 (Bkrtcy.D.Colo.1983) (repeating Covey language while excluding debts subject to a good faith dispute from its calculations); In re Karber, 25 B.R. 9, 15 (Bkrtcy.N.D.Texas 1982) (applying Covey criteria to dismiss an involuntary petition, id. at 14r-15, while noting that “[tjhere is persuasive authority that where a debtor fails to pay a debt that is subject to a bona fide dispute that debt should not be considered one which is not being paid as it becomes due for the § 303 analysis,” id. at 14); In re Blaine Richards & Co., Inc., 16 B.R. 362, 365 (Bkrtcy.E.D.N.Y.1982). Other courts have taken a more restrictive approach than did the Covey court to the inclusion of disputed debts in the § 303(b) calculation, and have articulated the rule that debts subject to a bona fide dispute generally will not be considered to determine whether a debtor is “generally paying” its debts. The court in In re All Media Properties Inc., 5 B.R. 126, 2 C.B.C.2d 449 (Bkrtcy.S.D.Tex.1980) stated, “where a debtor fails to pay a debt which is subject to a bona fide dispute that debt should not be considered a debt which has not been paid as it became due. There is no apparent reason why a debtor should have to pay disputed debts to avoid the entry of an order for relief.” Id. at 144, 2 C.B.C.2d at 469-70. See also, In re SBA Factors of Miami, Inc., 13 B.R. 99, 4 C.B.C.2d 1335 (Bkrtcy.S.D.Fla.1981) (“failure to pay several claims, disputed in good faith, does not prove that the debtor is generally not paying its debts as they become due,” 13 B.R. at 100, and where all the debts of the petitioning creditors are disputed in good faith, an involuntary petition must be dismissed, id.); In re Nar-Jor Enterprises Corp., 6 B.R. 584 (Bkrtcy.S.D.Fla.1980) (where the petitioning creditor contends that the alleged debtor owes unpaid sales taxes to the state and money to him but admittedly has no other debts, the petition must be dismissed since “there is a real, and not illusory, dispute between" }, { "docid": "1882321", "title": "", "text": "to include a fully secured holder of a non-contingent, undisputed claim.” Paradise Hotel Corp. v. Bank of Nova Scotia, 842 F.2d 47, 49 (3rd Cir.1988). Since NationsBank by stipulation satisfies the requirement that “the other petitioning creditors’ claims aggregate at least $5,000.00” of unsecured claims, Agricredit could be fully secured and the petitioning creditors as a group would satisfy the $5,000.00 unsecured claim requirement. Third, Agricredit expressly waived its security at the hearings on March 22,1994, and on March 30, 1994. Thus, for the purposes of this Chapter 7 ease, Agricredit is an unsecured creditor. 2 Collier on Bankruptcy ¶ 303.08[5]; American Gypsum Co., 31 B.R. 187 (Bankr.D.N.Mex.1983). 3. Kubota. The Debtor asserts that Kubota’s claim is the subject of a bona fide dispute consisting of the Debtor’s defenses and counterclaims in the pre-petition action instituted by Kubota against him. In re Sea Island Resorts, 82 B.R. 404 (Bankr.D.S.C.1987) and In re Galaxy Boat Manufacturing Co., Inc., 72 B.R. 200 (Bankr.D.S.C.1986) govern the issue of whether creditors’ claims are in bona fide dispute. The court followed Matter of Covey, 650 F.2d 877 (7th Cir.1981) in applying a three part test that a debt should be excluded if: (1) the dispute is whether any claim exists, not merely regarding the amount of the claim; (2) the dispute can be examined without substantial litigation of legal or factual questions; and (3) the interest of the debtor in defeating an order of involuntary bankruptcy outweigh [the] creditors interest in achieving a somewhat more rapid determination of the involuntary bankruptcy question. Sea Island Resorts, 82 B.R. at 406; Galaxy Boat, 72 B.R. at 202; Covey, 650 F.2d at 883-84. A debtor’s counterclaims against a creditor do not create a bona fide dispute about the creditor’s claims. As a general rule the debtor’s assertion of counterclaims, even if of substance, does not render the petitioner’s claim the subject of a bona fide dispute. Counterclaims serve, if established, to work a diminution or set off of the claim of the petitioning creditors [under the analysis of either 11 U.S.C. §§ 303(b)(1) or (h)(1) ]. In re" }, { "docid": "11087545", "title": "", "text": "of creditors and the debtor would be better served by such dismissal or suspension * * . The All Media decision continues to provide a sound definition of the term \"contingent”. \"[C]Iaims are contingent as to liability if the debt is one which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor and if such triggering event or occurrence was one reasonably contemplated by the debtor and creditor at the time the event giving rise to the claim accrued.\" 5 B.R. 126 at 133. The court further opined in All Media \"[T]he court believes that it is better to determine whether the holder of the claim has shown that liability on the debt existed * * *. If there is a bona fide dispute of either fact or law then the holder would not be disqualified from being a petitioning creditor since he would be a holder of a disputed claim, but not one that is contingent as to liability within the definition fashioned above.” 5 B.R. at 135. See and compare In re Covey, 650 F.2d 877 (7th Cir.1981). . In a pre-BAFJA decision, the Second Circuit stated a similar proposition: \"Still we have difficulty in believing that Congress intended that a debtor should be found to be generally not paying its debts as they become due under § 303(h)(1) or that a claim qualifies under § 303(b), when the claim is subject to serious dispute. As said in In re Nar-Jor Enterprises Corp., 6 B.R. 584, 586 (Bankr.S.D.Fla.1980), the bankruptcy courts were ‘not designed or intended to be the forum for trying isolated disputed claims.’ But here, after having been afforded the opportunity, B.D.I. failed to demonstrate to the bankruptcy court what ground it had for disputing Chase’s claim. In order to qualify a claim as a basis for seeking involuntary bankruptcy, a claimant need not make out a case warranting summary judgment although in fact Chase came close to this. It is sufficient to establish, as" }, { "docid": "23329369", "title": "", "text": "a creditor’s demand for payment, regardless of the existence or validity of the underlying obligation or to the accuracy of the amount demanded, while “debt” has a narrower significance, referring not to the creditor’s claim, but either to (1) the actual obligation to pay as it exists in the contemplation of applicable law, or (2) to the obligation to pay as asserted by the debtor in the bankruptcy schedules. See, In re King, supra, at 378. This proposition finds further support in the case of In re Covey, 650 F.2d 877 (7th Cir.1981), which involved an involuntary petition filed by three creditors naming Covey Dodge as the debtor in bankruptcy. On appeal, Covey argued inter alia that the creditors who petitioned for involuntary relief did not qualify under Section 303(b)(1) of the Code for the reason that they did not hold against the debtor noncontingent claims aggregating at least $5,000.00. The issue before the Covey court pertinent to the present case was whether claims disputed by the debtor were contingent or noncontingent within the meaning of Section 303(b)(1). The creditors argued that a mere dispute raised by the debtor did not render contingent an otherwise non-contingent claim. The debtor argued the contrary with the object of disqualifying the creditors as ineligible to file an involuntary petition. The Covey court noted that Section 303(b)(1) is silent as to the calculation of “disputed” debts. It also noted the existence of \"solid policy reasons in support of both creditors’ and debtors’ interests” and concluded that “there cannot be any absolute rule that disputed debts either should or should not be considered.” In re Covey, supra, at 883. Instead, the court concluded that “the bankruptcy courts should initially examine the dispute and, under certain circumstances, should then balance the interests of creditors and debtors with regard to the Code’s specific goals of prompt resolution” of the case. Id. See also, All Media Properties, Inc., 5 B.R. 126, 134-35 (Bky.S.D.Tex.1980). For the propositions noted, this court relies upon the decision in Covey. However, the Covey case is in certain other important respects different from the" }, { "docid": "17675215", "title": "", "text": "the bankruptcy court transferred the case to the district court. The district court, in turn, remanded the threshold jurisdictional issues to the bankruptcy court for initial consideration. These issues were (1) whether Nordbrock was generally paying his debts as they became due, and (2) whether, because Bankers Trust was the only petitioning creditor, Nordbrock had fewer than twelve creditors. The bankruptcy court found in Nordbrock’s favor on both issues and dismissed the petition, awarding Nordbrock attorneys’ fees. The district court, in a well-reasoned opinion, affirmed the dismissal of the petition. In light of the disputed nature of this debt, the court rejected Bankers Trust’s contention that Nordbrock was generally not paying his debts, stating in part: Appellant relies on Matter of Covey, 650 F.2d 877, 882-84 (7th Cir.1981) which sets forth a complicated procedure for determining when disputed debts should be excluded from the “generally paying debts” analysis in an involuntary bankruptcy proceeding. However, the two other Circuit Courts which have considered the question have criticized and declined to adopt the Covey approach as overly intricate and elaborate, In re B.D. Int’l Discount Corp., 701 F.2d 1071, 1077 (2nd Cir.), cert. denied, — U.S. -, 104 S.Ct. 108, 78 L.Ed.2d 110 (1983), and as weighted too heavily in favor of creditors, In re Dill, 731 F.2d 629 (9th Cir.1984). In addition, the Fifth Circuit has summarily affirmed a decision in which disputed debts were excluded from the section 303(h)(1) calculation: [T]he Court believes that where a debtor fails to pay a debt which is subject to a bona fide dispute, that debt should not be considered a debt which has not been paid as it became due. There is no apparent reason why a debtor should have to pay disputed debts to avoid the entry of an order of relief. In re All Media Properties, Inc., 5 B.R. 126, 144 (Bankr.S.D.Tex.1980), aff'd, 646 F.2d 193 (5th Cir.1981). # * * * This case reflects efforts by a single creditor to use the Bankruptcy Court as a forum for the trial and collection of an isolated disputed claim, a practice condemned" }, { "docid": "19367904", "title": "", "text": "the issue when it stated, “we have difficulty in believing that Congress intended that a debtor should be found to be generally not paying its debts as they become due under § 303(h)(1) ... when the claim is subject to serious dispute.” B.D. International Discount Corp., supra, at 1076. The Seventh Circuit in considering the problem determined that “there cannot be any absolute rule” Covey, supra, at 883, as to whether to include disputed debts in the calculation of debts not being paid, but stated that generally disputed debts can be included and that: “disputed debts should be excluded from the ‘generally paying debts’ determination only under the following circumstances: 1) the dispute is whether any claim exists, not merely regarding the amount of a claim; 2) the dispute can be examined without substantial litigation of legal or factual questions; and 3) the interests of the debtor in defeating an order of involuntary bankruptcy outweigh creditors’ interests in achieving a somewhat more rapid determination of the involuntary bankruptcy question.” Id. at 883-84. See also, In re Tarletz, 21 B.R. 787, 791 (Bkrtcy.D.Colo.1983) (repeating Covey language while excluding debts subject to a good faith dispute from its calculations); In re Karber, 25 B.R. 9, 15 (Bkrtcy.N.D.Texas 1982) (applying Covey criteria to dismiss an involuntary petition, id. at 14r-15, while noting that “[tjhere is persuasive authority that where a debtor fails to pay a debt that is subject to a bona fide dispute that debt should not be considered one which is not being paid as it becomes due for the § 303 analysis,” id. at 14); In re Blaine Richards & Co., Inc., 16 B.R. 362, 365 (Bkrtcy.E.D.N.Y.1982). Other courts have taken a more restrictive approach than did the Covey court to the inclusion of disputed debts in the § 303(b) calculation, and have articulated the rule that debts subject to a bona fide dispute generally will not be considered to determine whether a debtor is “generally paying” its debts. The court in In re All Media Properties Inc., 5 B.R. 126, 2 C.B.C.2d 449 (Bkrtcy.S.D.Tex.1980) stated, “where a debtor fails" }, { "docid": "1882322", "title": "", "text": "followed Matter of Covey, 650 F.2d 877 (7th Cir.1981) in applying a three part test that a debt should be excluded if: (1) the dispute is whether any claim exists, not merely regarding the amount of the claim; (2) the dispute can be examined without substantial litigation of legal or factual questions; and (3) the interest of the debtor in defeating an order of involuntary bankruptcy outweigh [the] creditors interest in achieving a somewhat more rapid determination of the involuntary bankruptcy question. Sea Island Resorts, 82 B.R. at 406; Galaxy Boat, 72 B.R. at 202; Covey, 650 F.2d at 883-84. A debtor’s counterclaims against a creditor do not create a bona fide dispute about the creditor’s claims. As a general rule the debtor’s assertion of counterclaims, even if of substance, does not render the petitioner’s claim the subject of a bona fide dispute. Counterclaims serve, if established, to work a diminution or set off of the claim of the petitioning creditors [under the analysis of either 11 U.S.C. §§ 303(b)(1) or (h)(1) ]. In re Drexler, 56 B.R. 960, 969 (Bankr.S.D.N.Y.1986). “Counterclaims may work a diminution of the claim, but they do not dispute the merits of the claim itself.” In re Atwood, 124 B.R. 402, 409 (S.D.Ga.1991). The Debtor admits the validity of the Ku-bota guaranty, but did not have any knowledge of the amount of the debt. There is no evidence to contradict Kubota’s proof of its debt in excess of $374,000.00, of which $267,-000.00 was for sales out-of-trust. The Debtr or raised the defenses that Kubota violated certain franchise laws in connection with the Plantation dealership agreement, did not terminate the Plantation dealership in accordance with the dealership contract, and committed unfair trade practices regarding Plantation. All of these counterclaims belong to the Chapter 7 estate of Plantation and not to the Debtor. It is a general rule of law, that a guarantor, when sued on a contract of guaranty, may not set off against the guaranty liability a claim arising out of a separate and distinct transaction. Likewise, in an action brought by the creditor solely" }, { "docid": "18560029", "title": "", "text": "the involuntary petition. The record reflects, and it is without dispute, that the involuntary Debtor had more than twelve creditors at the time of the commencement of the case. (Debtor’s Affidavit). Thereafter, the Debtor filed a Motion for Summary Judgment contending that there are no issues of material fact and that he is entitled to judgment as a matter of law. This is based on the following two grounds: The first is that, based on the documents presented, the Court should find that the petition is insufficient in that § 303(b)(1) requires that the petition be filed by three or more entities holding claims that are not contingent or subject to a bona fide dispute. It is the Debtor’s contention that none of the five petitioning creditors have such claims. Secondly, the Debtor contends that he is generally paying his debts as they become due unless they are the subject of a bona fide dispute and, consequently, that he should prevail under § 303(h)(1) on that basis. In support of his contentions, the Debtor directs the Court’s attention to the claims of the petitioning creditors. The Debtor contends that the claim of Salmon is based on a debt that is the subject of a bona fide dispute. In support of this contention, the Debtor introduced into evidence a certified copy of the complaint and answer filed in the circuit court case, styled Edwin B. Salmon, Jr. v. Dana C. Sjostedt, Case No. # 83-6689-15, filed in the Circuit Court for Pinellas County, Fla. on June 6, 1983. There is no question that when the debt claimed to be owed to a creditor is the subject of a lawsuit filed before the commencement of the case, the bankruptcy court is not obliged to find that the dispute is, in fact, bona fide within the meaning of § 303(h)(1), and therefore, that the creditor whose claim is challenged in the lawsuit is ineligible to be a petitioning creditor. In re B.D. International Discount Corp., 701 F.2d 1071 (2d Cir.1983); In the Matter of Covey, 650 F.2d 877 (7th Cir.1981); In re Dill," }, { "docid": "17904033", "title": "", "text": "of Bokum Resources Corp., 26 B.R. 615 (D.N.M.1982); Matter of SPL International Hawaii Ltd., Bkrtcy. No. 82-00549 (Bkrtcy.D.Haw. Dec. 15, 1982); Matter of B.D. International Discount Corp., 15 B.R. 755 (Bkrtcy.S.D.N.Y.1981). The appellee Salem Corp. responds that the Bankruptcy Court properly applied Covey because the dispute goes to the existence of the claim rather than the amount. Moreover, it argues that Covey is distinguishable because the debtor there had ceased doing business unlike Salem Corp. and finally that the interest of Salem Corp. in not being adjudicated a bankrupt exceeds Wayne-Dalton’s interest as a creditor. II. “Generally Not Paying” Determination An involuntary case is commenced by filing with the Bankruptcy Court a petition under Chapter 7 or 11 by three or more entities, each of which is a holder of a claim against such person that is not contingent as to liability ... if such claims aggregate at least $5000 more than the value of any lien on property of the debtor securing such claims held by holders of such claims. 11 U.S.C. § 303(b)(1) It is obvious from the language of the Bankruptcy Code as well as the case law that the right to be a petitioning creditor does not depend on the existence of an undisputed claim. Section 303(b)(1) gives the right to initiate involuntary proceedings to any holder of a claim so long as the claim is not contingent as to liability. Claim is defined in section 101(4)(A) as the “right to payment whether or not ... disputed.” See also Covey, 650 F.2d at 881. That the Code does not bar holders of disputed claims from being petitioning creditors is evidence of Congressional intent that “even holders of disputed claims should be able to seek a determination of whether a debtor is generally not paying its debts as they become due.” In re All Media Properties, Inc., 5 B.R. 126 (Bkrtcy.Tex.1980), aff’d (on the basis of the Bankruptcy Court’s opinion) 646 F.2d 193 (5th Cir.1981). However, once the holder of the disputed claim exercises its right to file the involuntary petition and the debtor timely challenges the" }, { "docid": "11087491", "title": "", "text": "the bankruptcy system as a tool of coercion * * * ” S. 7618, 98th Cong. 2d Sess., June 19, 1984. There is no definition of “bona fide dispute” in the Code. Nor does reference to the pre-BAFJA cases supply any ready definition. See, e.g., In re B.D. International Discount Corp., 701 F.2d 1071 (2d Cir.1983), cert. den. 464 U.S. 830, 104 S.Ct. 108, 78 L.Ed.2d 110; In re Covey, 650 F.2d 877 (7th Cir.1981); and In re All Media Properties, Inc., 5 B.R. 126 (Bankr.S.D.Tex.1980), aff'd 646 F.2d 193 (5th Cir.1981). Much of the pre-BAFJA dispute in this case turned on whether the Original Petitioners’ claims were contingent. Prior to the BAFJA amendment, a number of courts attempted to limit the standing of a petitioning creditor whose claim was disputed by the debtor by defining the claim as contingent. The BAFJA amendment removes any justification for strained interpretations of the term contingent and the court in this case may therefore turn its focus to the meaning of the “bona fide dispute” phrase. This court 'has already stated that the simplicity of the “bona fide dispute” language is deceptive, see In re Drexler, 56 B.R. 960, 966 (Bankr.S.D.N.Y.1986), and substantial interpretative problems are presented. One court dealing with the issue has held that if the defense of the alleged debtor to the claim of the petitioning creditor raises material issues of fact or law so that “a summary judgment could not be rendered as a matter of law in favor of the creditor on a trial of the claim, the claim is subject to a bona fide dispute.” In re Stroop, 51 B.R. 210, 212 (Bankr.D.Colo.1985). Another court grappling with the issue has held: “A bona fide dispute is a conflict in which an assertion of a claim or right made in good faith and without fraud or deceit on one side is met by contrary claims or allegations made in good faith and without fraud or deceit on the other side.” In re Johnston Hawks, Ltd., 49 B.R. 823, 830 (Bankr.D.Ha.1985). This court has held that “[a] general answer" }, { "docid": "5134187", "title": "", "text": "the involuntary petition and each of the creditors must have a non-contingent claim against the debtor, which in the aggregate exceed the security for such claims by $5,000. Since § 101(4) broadly defines the term “claim” to include any right to payment — whether such right arises at law or in equity, the interplay between §§ 303(b)(1) and 101(4) reveals that any party holding a non-contingent claim, regardless of whether it is liquidated, matured, disputed or reduced to judgment, qualifies as a petitioning creditor pursuant to § 303(b)(1). Only the holder of a contingent claim is denied, under the Code, the right to be a petitioning creditor under § 303(b)(1). In re All Media Properties, Inc., 5 B.R. 126 (Bkrtcy.S.D.Tex.1980), aff’d, 646 F.2d 193 (5th Cir.1981). See also, In re B.D. International Discount Corp., 701 F.2d 1071 (2d Cir.1983); In re Covey, 650 F.2d 877, 881 (7th Cir.1981); In re North County Chrysler Plymouth, Inc., 13 B.R. 393, 396, 4 C.B.C.2d 1533, 1536 (Bkrtcy.W.D.Mo.1981); 2 Colliers on Bankruptcy, ¶ 303.08[11] (15th Ed.1983). While the Code does not define “contingent claims”, in In re All Media Properties, Inc., 5 B.R. 126 (Bkrtcy.S.D.Tex.1980), aff’d, 646 F.2d 193 (5th Cir.1981), Judge Edward H. Patton, Jr. coined a definition for that term which has since become generally accepted: ... claims are contingent as to liability if the debt is one which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor and if such triggering event or occurrence was one reasonably contemplated by the debtor and creditor at the time the event giving rise to the claim occurred. On the other hand, if a legal obligation to pay arose at the time of the original relationship, but that obligation is subject to being avoided by some future event or occurrence, the claim is not contingent as to liability, although it may be disputed as to liability for various reasons. 5 B.R. at 133. See also, In re B.D. International Discount Corp., 701 F.2d 1071," }, { "docid": "19367901", "title": "", "text": "to creditors or regularly missing payments which are significant in amount in relation to the size of the debtor’s operation. Where the debtor has few creditors the number which will be significant will be fewer than where the debtor has a large number of creditors. Also, the amount of debts not being paid is important. If the amounts of missed payments are not substantial in comparison to the magnitude of the debt- or’s operation, involuntary relief would be improper.” In re All Media Properties, Inc., 5 B.R. 126, 142-43, 2 G.B.C.2d 449, 468 (Bkrtcy.D.Colo.1980); See In re Tarletz, 27 B.R. 787, 789 (Bkrtcy.D.Colo.1983) (courts must consider “the number of debts, the amount of delinquency, the materiality of nonpayment and the nature of the debtor’s conduct of his financial affairs”); accord, In re Reed, 11 B.R. 755, 759-60 (Bkrtcy.S.D.W.Va.1981); see also In re Winsum Sports, Inc., 14 B.R. 389, 5 C.B.C.2d 248, 251-52 (Bkrtcy.D.Conn.1981); 2 Collier on Bankruptcy, ¶ 303.12[1] at 303-47 — 303-48 (15 ed.) (“Although the precise scope and meaning assigned to the term ‘generally not paying’ are left to the courts, it is clear that a court must find more than a prospective inability by the debtor to pay only a few of his debts, and more than a past failure to pay a few liabilities. It is doubtless intended that a court should properly consider both the number and amount of debts in determining whether failure to pay is, in fact, ‘general’ ”). In addition to establishing general guidelines to assist in the determination of whether a debtor is “generally” paying its debts, courts have confronted the thorny problem of whether disputed debts should be included in the calculation of whether a debtor is “generally not paying” under § 303(h). See, e.g., B.D. International Discount Corp. v. Chase Manhattan Bank, N.V., (In re B.D. International Discount Corp.), 701 F.2d 1071 (2d Cir.1983); In re Covey, 650 F.2d 877 (7th Cir.1981); In re Tarletz, 27 B.R. 787 (Bkrtcy.D.Colo.1983); In re Karber, 25 B.R. 9 (Bkrtcy.N.D.Tex.1982); In re Galanis, 20 B.R. 590, 6 C.B.C.2d 932 (Bkrtcy.D.Conn.1982); In re Blaine" }, { "docid": "143200", "title": "", "text": "Little history to the BAFJA amendment to Code § 303 exists. The amendment was not among the much debated proposals that preceded the enactment of BAFJA. In proposing the amendment, Senator Max Baccus of Montana stated: “The problem can be explained simply. Some courts have interpreted Section 303’s language on a debtor’s general failure to pay debts as allowing the filing of involuntary petitions and the granting of involuntary relief even when the debtor’s reason for not paying is a legitimate and good faith dispute over his or her liability. This interpretation allows creditors to use the Bankruptcy Code as a club against debtors who have bona fide questions about their liability but who would rather pay up than suffer the stigma of involuntary bankruptcy proceedings. * * “I believe this amendment although a simply [sic] one is necessary to protect the rights of debtors and to prevent misuse of the bankruptcy system as a tool of coercion * * * ” S. 7618, 98th Cong.2d Sess., June 19, 1984. There is no definition of “bona fide dispute” in the Code. Reference to the pre-amendment cases is of only limited usefulness even though the BAFJA amendment was intended as clarifying prior law. See, e.g., In re Covey, 650 F.2d 877 (7th Cir.1981); In re B.D. International Discount Corp., 701 F.2d 1071 (2d Cir.1983), cert. den. 464 U.S. 830, 104 S.Ct. 108, 78 L.Ed.2d 110; and In re All Media Properties, Inc., 5 B.R. 126 (Bankr.S.D.Tex.1980), aff'd 646 F.2d 193 (5th Cir.1981). The simplicity of the “bona fide dispute” language is deceptive. Substantial interpretative problems are presented in its application to any given set of facts. One court dealing with the issue as a matter of first impression has held that if the defense of the alleged debtor to the claim of the petitioning creditor raises material issues of fact or law so that “a summary judgment could not be rendered as a matter of law in favor of the creditor on a trial of the claim, the claim is subject to a bona fide dispute.” In re Stroop, supra, 13" }, { "docid": "17904034", "title": "", "text": "It is obvious from the language of the Bankruptcy Code as well as the case law that the right to be a petitioning creditor does not depend on the existence of an undisputed claim. Section 303(b)(1) gives the right to initiate involuntary proceedings to any holder of a claim so long as the claim is not contingent as to liability. Claim is defined in section 101(4)(A) as the “right to payment whether or not ... disputed.” See also Covey, 650 F.2d at 881. That the Code does not bar holders of disputed claims from being petitioning creditors is evidence of Congressional intent that “even holders of disputed claims should be able to seek a determination of whether a debtor is generally not paying its debts as they become due.” In re All Media Properties, Inc., 5 B.R. 126 (Bkrtcy.Tex.1980), aff’d (on the basis of the Bankruptcy Court’s opinion) 646 F.2d 193 (5th Cir.1981). However, once the holder of the disputed claim exercises its right to file the involuntary petition and the debtor timely challenges the petition, the Bankruptcy Court must determine, after trial, whether the debtor is generally not paying its debts as they become due. 11 U.S.C. § 303(h)(1). The burden is upon the petitioning creditors to demonstrate that the debtor is generally not paying its debts as they become due. In re SBA Factors of Miami, 13 B.R. 99 (Bkrtcy.S.D.Fla.1981). Where a debt is disputed, the section 303(h)(1) determination is obviously a two-step process. First, the Bankruptcy Court must determine whether or not a particular disputed debt should be included in the calculation. Having decided which disputed debts, if any, should be included, the Court must then decide whether the debtor is generally paying its debts as they come due. Our task here is to determine whether the Bankruptcy Court used the proper procedure in deciding whether to include the disputed Wayne-Dalton debts. Rule 810, Rules of Bankruptcy Procedure. A Court’s conclusions of law—such as the standard to be applied to a disputed debt— is freely reviewable on appeal. United States v. Mississippi Valley Generating Co., 364 U.S." }, { "docid": "17675216", "title": "", "text": "intricate and elaborate, In re B.D. Int’l Discount Corp., 701 F.2d 1071, 1077 (2nd Cir.), cert. denied, — U.S. -, 104 S.Ct. 108, 78 L.Ed.2d 110 (1983), and as weighted too heavily in favor of creditors, In re Dill, 731 F.2d 629 (9th Cir.1984). In addition, the Fifth Circuit has summarily affirmed a decision in which disputed debts were excluded from the section 303(h)(1) calculation: [T]he Court believes that where a debtor fails to pay a debt which is subject to a bona fide dispute, that debt should not be considered a debt which has not been paid as it became due. There is no apparent reason why a debtor should have to pay disputed debts to avoid the entry of an order of relief. In re All Media Properties, Inc., 5 B.R. 126, 144 (Bankr.S.D.Tex.1980), aff'd, 646 F.2d 193 (5th Cir.1981). # * * * This case reflects efforts by a single creditor to use the Bankruptcy Court as a forum for the trial and collection of an isolated disputed claim, a practice condemned in prior decisions. See, e.g., Matter of Goldsmith, 30 B.R. 956, 963 (Bankr.E.D.N.Y.1983); In re R.N. Salem Corp., 29 B.R. 424, 429 (Bankr.S.D.Ohio 1983); In re SBA Factors of Miami, Inc., 13 B.R. 99, 100-101 (Bankr.S.D.Fla.1981); In re Nar-Jor Enterprises Corp., 6 B.R. 584, 586 (Bankr.S.D.Fla.1980). There currently exists, in fact, a pending case in an Iowa District Court in which appellant is attempting to enforce the same claim against Nordbrock as has been asserted in this case. Even in Matter of Covey, on which appellant relies, the Seventh Circuit was not faced with a situation in which the disputed debt at issue was the only obligation of the debt- or not being paid in the regular course of the debtor’s business. The Bankruptcy Court’s denial of an order of relief pursuant to 11 U.S.C. § 303(h)(1) was correct and is therefore affirmed. In re Gerald L. Nordbrock, 52 B.R. 370, 371-72 (D.Neb.1984) (footnote omitted). We affirm the judgment against Bankers Trust on the basis of the district court’s opinion. II. In his cross-appeal, Nordbrock" }, { "docid": "143201", "title": "", "text": "“bona fide dispute” in the Code. Reference to the pre-amendment cases is of only limited usefulness even though the BAFJA amendment was intended as clarifying prior law. See, e.g., In re Covey, 650 F.2d 877 (7th Cir.1981); In re B.D. International Discount Corp., 701 F.2d 1071 (2d Cir.1983), cert. den. 464 U.S. 830, 104 S.Ct. 108, 78 L.Ed.2d 110; and In re All Media Properties, Inc., 5 B.R. 126 (Bankr.S.D.Tex.1980), aff'd 646 F.2d 193 (5th Cir.1981). The simplicity of the “bona fide dispute” language is deceptive. Substantial interpretative problems are presented in its application to any given set of facts. One court dealing with the issue as a matter of first impression has held that if the defense of the alleged debtor to the claim of the petitioning creditor raises material issues of fact or law so that “a summary judgment could not be rendered as a matter of law in favor of the creditor on a trial of the claim, the claim is subject to a bona fide dispute.” In re Stroop, supra, 13 B.C.D. at 319. This standard, even if this court were to adopt it, is not readily applicable to the facts of this case because of the procedural posture of the District Court Action at the time the involuntary petition was filed. Another court grappling with the issue has held: “A bona fide dispute is a conflict in which an- assertion of a claim or right made in good faith and without fraud or deceit on one side is met by contrary claims or allegations made in good faith and without fraud or deceit on the other side.” In re Johnston Hawks, Ltd., 49 B.R. 823, 830 (Bankr.D.Ha.1985). This standard appears to require determination of the debt- or’s subjective good faith and may require as well as an objective appraisal of the merits. The court also finds this standard inappropriate in this case because of the procedural posture of the District Court Action when the involuntary petition was filed. Nor have the BAFJA amendments to Code § 303 eliminated the need to make a careful appraisal" }, { "docid": "16892237", "title": "", "text": "debtor’s failure to pay. In re Reed, supra, at 760. This third factor was elaborated on by the Circuit Court in In Matter of Covey, 650 F.2d 877 (7th Cir.1981). The debtor contended that “disputed” debts should not be included in determining whether the debtors were generally not paying their debts. The Court determined that policy considerations do not support a rule of including or excluding disputed debts from the “generally paying debts” calculation. The court in Covey fashioned the following test: Thus, disputed debts should be excluded from the “generally paying debts” determination only under the following circumstances: 1) the dispute is whether any claim exists, not merely regarding the amount of a claim; 2) the dispute can be examined without substantial litigation of legal or factual issues; and 3) the interests of the debtor in defeating an order of involuntary bankruptcy outweigh creditors’ interests in achieving a somewhat more rapid determination of the involuntary bankruptcy question. Id. at 883-884. If the debtor’s interests in avoiding the involuntary bankruptcy outweigh the creditors’ interest in a more rapid decision, then the bankruptcy courts should reach the “dispute” issue. If the debtor does establish that the entire debt is barred or otherwise invalid, then the disputed debt should be excluded from the “generally paying debts” calculation. Id. at 883. The foregoing three factors of number, amount and materiality of nonpayment must be considered in the context of the fourth factor, which is the debtor’s handling of his financial affairs. If the debtor is winding up his business or personal affairs, selling assets in a liquidating fashion, paying only nondischargeable or co-obligor debts, kiting checks, or otherwise is conducting his financial affairs in a manner not consistent with one operating in good faith and in the regular course of business, then the interpretation of nonpayment could be quite different. In re Reed, supra, at 760. The Court must now apply these standards to Tarletz’ situation to determine if he is generally not paying his debts as they become due. The petitioning creditors contend that, in addition to the debts due them, Tarletz" }, { "docid": "143228", "title": "", "text": "creditor at the time the event giving rise to the claim accrued.\" 5 B.R. at 133. Using this definition, it is apparent that once a judicial finding of liability occurs and a judgment is entered, as had occurred here, the issue of contingency is foreclosed without regard to whether the claim was contingent prejudgment. It is therefore unnecessary for this court to determine whether petitioners’ claims were contingent prior to judgment as they are not contingent now. The necessity for a definition of the term \"contingent” prior to the BAFJA amendment to Code § 303 arose out of attempts to limit the standing to file an involuntary petition of a creditor whose claim was disputed by the debt- or by defining the claim as contingent. Judge Potter opined in All Media “[T]he court believes that it is better to determine whether the holder of the claim has shown that liability on the debt existed * * *. If there is a bona fide dispute of either fact or law then the holder would not be disqualified from being a petitioning creditor since he would be a holder of a disputed claim, but not one that is contingent as to liability within the definition fashioned above.” 5 B.R. at 135. See and compare In re Covey, 650 F.2d 877 (7th Cir.1981). . The term \"final judgment” is used here in a generic sense. As is evident from the subsequent discussion, a determination of whether any particular decree should be treated as a \"final judgment” requires careful analysis of factual and legal concerns. . If the judgment has been stayed, the claimant would appear to be precluded from joining in the involuntary petition, just as the claimant would be precluded from taking any other action to attempt collection on the judgment. But see In re Henry, 13 B.C.D. 388 (Bankr.S.D.Ohio 1985). . Drexler’s argument also has a paradoxical quality. The filing of a petition by a debtor automatically stays pending actions by virtue of Code § 362. A debtor unable to afford an appeal bond may file a Chapter 11 petition in" }, { "docid": "11087490", "title": "", "text": "Code § 303(h)(1). The BAFJA amendment added the key phrase “the subject of a bona fide dispute” to both Code § 303(b)(1) and (h)(1). Little history to the BAFJA amendment to Code § 303 exists as the amendment was not among the much debated proposals that preceded the enactment of BAFJA. In proposing the amendment, Senator Max Baccus of Montana stated: “The problem can be explained simply. Some courts have interpreted Section 303’s language on a debtor’s general failure to pay debts as allowing the filing of involuntary petitions and the granting of involuntary relief even when the debtor’s reason for not paying is a legitimate and good faith dispute over his or her liability. This interpretation allows creditors to use the Bankruptcy Code as a club against debtors who have bona fide questions about their liability but who would rather pay up than suffer the stigma of involuntary bankruptcy proceedings. * * “I believe this amendment although a simply [sic] one is necessary to protect the rights of debtors and to prevent misuse of the bankruptcy system as a tool of coercion * * * ” S. 7618, 98th Cong. 2d Sess., June 19, 1984. There is no definition of “bona fide dispute” in the Code. Nor does reference to the pre-BAFJA cases supply any ready definition. See, e.g., In re B.D. International Discount Corp., 701 F.2d 1071 (2d Cir.1983), cert. den. 464 U.S. 830, 104 S.Ct. 108, 78 L.Ed.2d 110; In re Covey, 650 F.2d 877 (7th Cir.1981); and In re All Media Properties, Inc., 5 B.R. 126 (Bankr.S.D.Tex.1980), aff'd 646 F.2d 193 (5th Cir.1981). Much of the pre-BAFJA dispute in this case turned on whether the Original Petitioners’ claims were contingent. Prior to the BAFJA amendment, a number of courts attempted to limit the standing of a petitioning creditor whose claim was disputed by the debtor by defining the claim as contingent. The BAFJA amendment removes any justification for strained interpretations of the term contingent and the court in this case may therefore turn its focus to the meaning of the “bona fide dispute” phrase. This court" }, { "docid": "5134188", "title": "", "text": "does not define “contingent claims”, in In re All Media Properties, Inc., 5 B.R. 126 (Bkrtcy.S.D.Tex.1980), aff’d, 646 F.2d 193 (5th Cir.1981), Judge Edward H. Patton, Jr. coined a definition for that term which has since become generally accepted: ... claims are contingent as to liability if the debt is one which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor and if such triggering event or occurrence was one reasonably contemplated by the debtor and creditor at the time the event giving rise to the claim occurred. On the other hand, if a legal obligation to pay arose at the time of the original relationship, but that obligation is subject to being avoided by some future event or occurrence, the claim is not contingent as to liability, although it may be disputed as to liability for various reasons. 5 B.R. at 133. See also, In re B.D. International Discount Corp., 701 F.2d 1071, 1073 n. 2 (2d Cir.1983); In re Covey, 650 F.2d 877, 881 (7th Cir.1981); In re McMeekin, 16 B.R. 805, 807 (Bkrtcy.D.Mass.1982); In re North County Chrysler Plymouth Inc., 13 B.R. 393, 396, 4 C.B.C.2d 1533, 1536 (Bkrtcy.W.D.Mo.1981); 2 Collier on Bankruptcy, ¶ 303.08[11] (15th Ed.1983). In the application of this test, the statutory scheme makes it plain that Congress, in enacting § 303(b)(1) and eliminating the need for a provable liquidated claim required by the Bankruptcy Act, expressed a policy in favor of a more liberal taking of jurisdiction in involuntary cases than under the Act: resolution of disputes concerning claims should be left to a later time and the focus of an involuntary proceeding should be on whether the debtor is generally not paying its debts as they become due. In re North County Chrysler Plymouth, 13 B.R. 393, 399, 4 C.B.C.2d 1533, 1540 (Bkrtcy.W.D.Mo.1981). See also, In re Turner, 32 B.R. 244, 10 B.C.D. 1221, 1222 (Bkrtcy.D.Mass.1983); In re All Media Properties, Inc., 5 B.R. 126, 135 (Bkrtcy.S.D.Tex.1981), aff’d, 646 F.2d 193" } ]

[ { "docid": "21151074", "title": "", "text": "attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance” of a claim forfeits that claim. II. False Claims. In order to recover damages for violation of the False Claims Act, the government must establish that (1) the contractor presented or caused to be presented to an agent of the United States a claim for payment; (2) the claim was false or fraudulent; (3) the contractor knew the claim was false or fraudulent; and (4) the United States suffered damages as a result of the false or fraudulent claim. Miller v. United States, 550 F.2d 17, 23, 213 Ct.Cl. 59 (Ct.Cl.1977). As Eisenhut admitted, he knew the invoice was false. Thus, the only issue remaining is whether the government suffered any damages. We hold that the government was damaged by paying money before it was due to the contractor and that the trial court determined the proper amount of damages, which it lawfully trebled. The False Claims Act provides civil penalties of not less than $5,000.00 and not more than $10,000.00 plus three times the amount of damages which the government sustained. 31 U.S.C. § 3729(a) (1988). In granting the government summary judgment, the trial court awarded $5,000.00 as the statutory penalty and $147,000.00 in treble damages, three times the amount of the difference between the amount of the original Keeler invoice and the amount of the altered Keeler invoice which was submitted by Young-Montenay to the VA. That is a reasonable measure of damages. No authority has been cited to mandate acceptance of the contractor’s arguments for lesser measures. Moreover, although the government sought only $98,000.00 in damages in its filings at the summary judgment stage, no authority has been cited to us that the trial court cannot award more so long as the trial court complies with the provisions of 31 U.S.C. § 3729, which it has. Accordingly, we affirm the trial court’s award of $147,000.00. AFFIRMED. . Later, Keeler did issue a second invoice in the amount of $153,000.00 for the burner package. . Young-Montenay contended that the affidavits of Richard" } ]

[ { "docid": "11010915", "title": "", "text": "the False Claims Act, the government’s counterclaim for unjust enrichment was dismissed. Brooks timely appealed the judgment of the district court. Issues Brooks presents the following claims on appeal: (1) the government failed to sustain its burden of proving that Brooks violated the False Claims Act; (2) the FNS erred in disqualifying Brooks from the Food Stamp Program for three years; (3) the district court erred in denying Brooks’ motion for a continuance of the trial; and (4) the district court’s “many interruptions” of Brooks during his examination of various witnesses deprived Brooks of a fair trial. Discussion Brooks first argues that government failed to prove that he violated the False Claims Act, 31 U.S.C. § 3729. Subsections 3729(a)(1) and (b) provide: (a) Liability for certain acts. — Any person who— (1)knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; its * * * * * is hable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person.... ^ (b) Knowing and knowingly defined.— For the purposes of this section, the terms “knowing” and “knowingly” mean that a person, with respect to information— (1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. The United States is required to prove ah essential elements of a claim for violation of the False Claims Act by a preponderance of the evidence. 31 U.S.C. § 3731(e). We review findings of fact under a clearly erroneous standard. Keller v. United States, 58 F.3d 1194, 1197 (7th Cir.1995). We review conclusions of law de novo. Kraushaar v. Flanigan, 45 F.3d 1040, 1052 (7th Cir.1995). Since Brooks" }, { "docid": "19538442", "title": "", "text": "fraudulent claims. See 31 U.S.C. § 3729(a) (imposing civil liability on \"any person who ... knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval\"). A \"claim\" now includes direct requests to the Government for payment as well as reimbursement requests made to the recipients of federal funds under federal benefits programs. See § 3729(b)(2)(A). The Act's scienter requirement defines \"knowing\" and \"knowingly\" to mean that a person has \"actual knowledge of the information,\" \"acts in deliberate ignorance of the truth or falsity of the information,\" or \"acts in reckless disregard of the truth or falsity of the information.\" § 3729(b)(1)(A). And the Act defines \"material\" to mean \"having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.\" § 3729(b)(4). Congress also has increased the Act's civil penalties so that liability is \"essentially punitive in nature.\" Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 784, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). Defendants are subjected to treble damages plus civil penalties of up to $10,000 per false claim. § 3729(a) ; 28 CFR § 85.3(a)(9) (2015) (adjusting penalties for inflation). B The alleged False Claims Act violations here arose within the Medicaid program, a joint state-federal program in which healthcare providers serve poor or disabled patients and submit claims for government reimbursement. See generally 42 U.S.C. § 1396 et seq. The facts recited in the complaint, which we take as true at this stage, are as follows. For five years, Yarushka Rivera, a teenage beneficiary of Massachusetts' Medicaid program, received counseling services at Arbour Counseling Services, a satellite mental health facility in Lawrence, Massachusetts, owned and operated by a subsidiary of petitioner Universal Health Services. Beginning in 2004, when Yarushka started having behavioral problems, five medical professionals at Arbour intermittently treated her. In May 2009, Yarushka had an adverse reaction to a medication that a purported doctor at Arbour prescribed after diagnosing her with bipolar disorder. Her condition worsened; she suffered a seizure that required hospitalization. In October 2009," }, { "docid": "13683443", "title": "", "text": "the FCA and are instead addressable by the administrative sanctions available, including suspension and expulsion from the Medicare program. This Court reviews a district court’s grant of summary judgment de novo, Ventas, Inc. v. HCP, Inc., 647 F.3d 291, 324 (6th Cir.2011), applying the same standards as the district court. Nartron Corp. v. STMicroelecs., Inc., 305 F.3d 397, 403 (6th Cir.2002). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact” such that “the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A. MedQuest’s use of non-approved supervising physicians for contrast procedures does not constitute an adequate basis for an FCA claim because it violated only conditions of participation. The FCA creates civil liability for any person who “knowingly presents, or causes to be presented” to the government “a false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a)(1) (2006). The statute requires only that the false or fraudulent claim be presented by a person with actual knowledge of the information submitted and who acts in deliberate ignorance, or with reckless disregard as to the veracity of that information. Id. § 3729(b). Suit may be filed directly by the government or, as here, may be brought as a qui tarn action in which the government may intervene. Id. § 8730. Treble damages are prescribed by statute, and civil penalties range from $5,500 to $11,000 per false claim. Id. § 3729(a); 28 C.F.R. § 85.3(a)(9) (2011). In addition to obvious cases of fraud, as where a provider bills for procedures or services that were not rendered or not necessary, a claim may be false under a “false certification” theory, as “when the claimant knowingly falsely certifies that it has complied with a statute or regulation the compliance with which is a condition for Government payment.” United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 305 (3d Cir.2011); see also Chesbrough v. VP A, P.C., 655 F.3d 461, 467 (6th Cir.2011). The success of a false certification claim depends on whether it" }, { "docid": "23032034", "title": "", "text": "Troy, 247 F.3d 633, 638 (6th Cir.2001)); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). III. According to the FCA: Any person who (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government ... is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person. 31 U.S.C. § 3729. The purpose of the FCA is “to encourage any individual knowing of Government fraud to bring that information forward.” United States ex rel. McKenzie v. BellSouth Telecomm., Inc., 123 F.3d 935, 938 (6th Cir.1997) (McKenzie I) (quoting S.Rep. No. 99-345 (1986), reprinted in 1986 U.S.C.C.A.N. 5266); see also United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 18 (2d Cir.1990) (“ ‘[T]he purpose of the qui tam provisions of the False Claims Act is to encourage private individuals who are aware of fraud being perpetrated against the Government to bring such information forward.’ ”) (quoting H.R.Rep. No. 99-660, at 22 (1986)). If, as in this case, the government does not assert its statutory right to take over the case, the relator can recover between twenty-five and thirty percent of any monies recovered from a settlement or judgment, in addition to reasonable expenses and attorneys’ fees and costs. 31 U.S.C. § 3730(d)(2). Yuhasz claims that Brush, by itself or through intermediaries, submitted fraudulent certifications and claims for payment to the United States and received payment from the United States for alloys not meeting government specifications, in violation of the FCA. Specifically, Yuhasz alleges that Brush had actual knowledge and/or acted in deliberate disregard or ignorance" }, { "docid": "20879698", "title": "", "text": "is further evidence of bad faith. It means that Daewoo submitted a certified claim as a negotiating ploy; that is, for a reason other than an attempt to recover money for which Daewoo believed the Government is liable. The CDA fraud provision applies “to the extent a contractor increases the claim submission by the fraudulent addition of items or costs or by misrepresenting its claim items or costs.” Senate Report No. 95-1118. Congress expressed concern that the statutory penalty permitted by the False Claims Act, the same amount per claim irrespective of the amount, may not be a sufficient deterrent for large claims. Its intent therefore was, “the larger the fraud attempted, the greater is the liability to the Government.” Id. Daewoo’s entire $64 million claim was an attempt to defraud the United States. 3. False Claims Act — 31 U.S.C. § 3729 The Government must prove the elements of a cause of action under the False Claims Act by a preponderance of the evidence. See 31 U.S.C. § 3731(c). Defendant must establish that (1) the contractor presented to the United States a claim for payment; (2) the claim was false or fraudulent; (3) the contractor knew the claim was false or fraudulent; and (4) the United States suffered damages as a result of the false or fraudulent claim. Young-Montenay, Inc. v. United States, 15 F.3d at 1043 (quoting Miller v. United States, 213 Ct.Cl. 59, 550 F.2d 17 (1977)). “Knowledge” includes deliberate ignorance of the truth or reckless disregard of the truth, and in that case no proof of specific intent to defraud is required. 31 U.S.C. § 3729(b)(3). Daewoo presented a false claim for payment and knowingly used false records or statements to support the claim. The penalty is $10,000 plus three times the amount of damages. 31 U.S.C. § 3729(a)(3). “Claim” is defined broadly by the statute to include “any request or demand ... for money or property” from the Government. See § 3729(c). Typical examples of false claims in this court are those represented by invoices or similar “claims for payment.” Daewoo did not present invoices" }, { "docid": "5746173", "title": "", "text": "audit; 95 from the Medicare audit; 65 from the CHAMPUS audit; and 56 from the Mailhandlers audit. Conclusions of Law This Court has jurisdiction under 31 U.S.C. § 3732(a), and 28 U.S.C. §§ 1331 and 1345. False Claims Act In order to establish a violation of the FCA, a plaintiff must show by a preponderance of the evidence that: (1) a false or fraudulent claim (2) is presented to the United States for payment or approval (3) with knowledge that the claim is false or fraudulent. 31 U.S.C. § 3729(a)(1). Alternatively, a plaintiff may prove the FCA claim by showing: (1) a false record or statement (2) is used to cause the United States to pay or approve a fraudulent claim (3) with the defendant’s knowledge of the falsity of the record or statement. 31 U.S.C. § 3729(a)(2). Further, where a corporate officer has knowledge of the falsity of a claim, that knowledge is imputed to his employer — the corporation itself. See United States v. Entin, 750 F.Supp. 512, 519 (S.D.Fla.1990). Each false claim results in a statutory penalty of not less than $5,000 and not more than $10,000, plus three times the amount of damages sustained by the government, absent leniency for certain cooperation which may reduce the penalty to an amount not less than two times the amount of damages sustained by the government. 31 U.S.C. § 3729(a). Additionally, in a qui tarn action, a defendant is also liable for reasonable costs and legal fees incurred by the qui tarn plaintiff. 31 U.S.C. § 3730(d). A “claim” includes any request or demand, whether under contract or otherwise, for money or property which is made to a contractor, which is either directly remitted by the United States government, or if the government will reimburse the contractor for any portion of the money or property requested or demanded. 31 U.S.C. § 3729(c). In deciding whether a given statement is a false claim or demand for payment, a court must determine if, within the payment scheme, the statement has the purposeful effect of inducing wrongful payment. United States v. Rivera," }, { "docid": "13305330", "title": "", "text": "ignorance of the truth or falsify of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. 31 U.S.C. § 3729. . The 1986 addition provides that a \" 'claim' includes any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.” 31 U.S.C. § 3729(c) (Supp.2001). . See Cong. Globe, 37th Cong., 3d Sess. 952-958, 952 (1863) (\"On motion of Mr. Howard, the bill (S. No. 467) to prevent and punish frauds upon the Government of the United States, was considered as in Committee of the Whole.”); S. Rep. No. 99-345, at 1-2 (1986), reprinted in 1986 U.S.C.C.A.N. 5266 (\"The purpose of S.1562, the False Claims Reform Act, is to enhance the Government's ability to recover losses sustained as a result of fraud against the Government.”). . Although the courts generally require materiality, the Supreme Court and the Fifth Circuit have rejected the additional requirement that the United States have suffered damages ‘as a result of the false or fraudulent claim. See Rex Trailer Co. v. United States, 350 U.S. 148, 152, 76 S.Ct. 219, 100 L.Ed. 149 (1956) (\"there is no requirement, statutory or judicial, that specific damages be shown”). The Fifth Circuit has specifically held that actual damages need not be shown. In United States v. Miller, 645 F.2d 473 (5th Cir.1981), the court held that the dual remedies of civil penalty and actual damages provided in the False Claim Act indicate that the government need not show actual damages. See id. at 476 n. 4. See also United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 20 F.Supp.2d 1017, 1047 (S.D.Tex.1998), remanded from 125 F.3d 899 (5th Cir. 1997) (\"a pecuniary injury to the" }, { "docid": "6953965", "title": "", "text": "has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information. Specific intent to defraud is not required. 31 U.S.C. § 3729(b). In the present case, plaintiff knew as of April 1986 that ASC was not performing 100% RT inspections. Despite this knowledge, plaintiff failed to inform defendant of the noncompliance. Thus, plaintiff acted “knowingly” because it had actual knowledge that the representations on the DD-250s were false or misleading. See supra Section I.A.2. d. Damages Suffered by Defendant Because of False Claims To prove the final element of a False Claims Act claim, defendant asserts that it would not have signed the DD250 forms and authorized payment had it been aware that the TMBs were not inspected. In addition, defendant suffered by having to deadline the howitzers containing ASC TMBs until the TMBs could be field tested. See supra Section I.A.3. These damages include amounts for the interest due to the government on contract payments made prematurely. 2. False Record or Statement Under the False Claims Act, 31 U.S.C. § 3729(a)(2) (1994), “[a]ny person who knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the government ... is liable” to the Government for treble damages and civil penalties. Id. (emphasis added). The government must prove that: (1) plaintiff made, used or caused to be made or used, a record or statement to get a claim against the United States paid or approved; (2) the record or statement and the claim were false or fraudulent; (3) plaintiff knew that the record or statement and the claim were false or fraudulent; and (4) the United States suffered damages as a result. Chemray Coatings Corp. v. United States, 29 Fed. Cl. 278, 284 (1993) (citing United States ex rel. Stinson v. Provident Life & Accident Ins. Co., 721 F.Supp. 1247, 1259 (S.D.Fla.1989)). Defendant argues that plaintiff used ASC COCs and plaintiffs own form" }, { "docid": "22582558", "title": "", "text": "were intended to encourage the filing of private qui tam actions, yet also included provisions designed to prevent “parasitic” lawsuits, in which “relators, rather than bringing to light independently-discovered information of fraud, simply feed off of previous disclosures of ... fraud [against the government].” United States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1347 (4th Cir.1994). The amendments thus represent the latest chapter in a long history of “ ‘repeated congressional efforts to walk a fine line between encouraging whistle-blowing and discouraging opportunistic behavior.’ ” Prawer, 24 F.3d at 326 (quoting Quinn, 14 F.3d at 651). The FCA imposes liability upon persons who 1) present or cause to be presented to the United States government, a claim for approval or payment, where 2) that claim is false or fraudulent, and 3) the action was undertaken “knowingly,” in other words, with actual knowledge of the falsity of the information contained in the claim, or in deliberate ignorance or reckless disregard of the truth or falsity of that information. 31 U.S.C. § 3729(a)(1), (b). The statute does not require proof of specific intent, that is, intent to present false or fraudulent claims to the government. Id. § 3729(b) (stating that “no proof of specific intent to defraud is required” to prove liability under the FCA). The statute further prohibits “conspir[acies] to defraud the Government by citing a false or fraudulent claim allowed or paid.” Id. § 3729(a)(3). Individuals who violate the FCA are liable for civil penalties and double or treble damages plus the costs incurred in bringing the FCA lawsuit. Id. § 3729(a). Not all fraudulent conduct gives rise to liability under the FCA. “[T]he statute attaches liability, not to the underlying fraudulent activity or to the government’s wrongful payment, but to the ‘claim for payment.’ ” United States v. Rivera, 55 F.3d 703, 709 (1st Cir.1995). Evidence of an actual false claim is “the sine qua non of a False Claims Act violation.” United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1311 (11th Cir.2002), cert. denied, 537 U.S. 1105, 123" }, { "docid": "21837884", "title": "", "text": "on those who defraud the Government.” Universal Health Servs., Inc. v. U.S. ex rel. Escobar (“Escobar”), — U.S. —, 136 S.Ct. 1989, 1995, 195 L.Ed.2d 348 (2016). The FCA focuses primarily “on those who present or directly induce the submission of false or fraudulent claims.” Id. at 1996; see 31 U.S.C. § 3729(a)(1)(A) (imposing civil liability on “any person who ... knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”). It also imposes liability for knowingly or improperly avoiding or decreasing an obligation to pay or transmit money to the United States. 31 U.S.C. § 3729(a)(1)(G). Liability under § 3729(a)(1)(G) occurs when a party owes funds to the government but acts to avoid meeting its obligation to return those funds. A “claim” includes direct requests to the government for payment and claims for reimbursement under federal benefits programs. Id. § 3729(b)(2)(A). The FCA defines “knowing” and “knowingly” to mean that a person has “actual knowledge of the information,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts in reckless disregard of the truth or falsity of the information.” Id. § 3729(b)(1)(A). And the Act defines “material” to mean “having a natural tendency to influence, or be capable of influencing, the payment- or receipt of money or property.” Id. § 3729(b)(4). Liability under the FOA is “essentially punitive in nature.” Escobar, 136 S.Ct. at 196 (quoting Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 784, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000)). Defendants who are found liable are subjected to treble damages, plus civil penalties of up to $10,000 per false claim. 31 U.S.C. § 3729(a); 28 CFR § 85.3(a)(9) (2015) (adjusting penalties for inflation). An FCA action may be commenced either by the government itself, 31 U.S.C. § 3730(a), or, alternatively, by a private person, referred to as a “relator.” In the' latter case, a relator brings a qui tam civil action “for the person and for the United States Government” against the alleged false claimant, “in the name of the Government.” Id." }, { "docid": "12759480", "title": "", "text": "knowledge of the fraud when he has purposefully turn the blind eye to the conduct of Arbona, his subordinate. The False Claims Act, 31 U.S.C. § 3729(b), provides that: For the purpose of this section, the term “knowing” and “knowingly” means that a person, with respect to information— (1) had actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. The case law construing 31 U.S.C. § 3729(b) affirms the clear language of the statute and the intentions of Congress that “no proof of specific intent to defraud is required”. Tyger Construction Co., Inc. v. United States, 28 Fed.Cl. 35, 54 (1993); United States ex rel. Wang v. FMC Corp., 975 F.2d 1412, 1420 (9th Cir.1992); United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir.1991) (“what constitutes the offense is not intent to deceive but knowingly presentation of a claim that is either ‘fraudulent’ or simply ‘false’ ”); United States v. Incorporated Village of Island Park, 888 F.Supp. 419 (E.D.N.Y.1995); United States v. Entin, 750 F.Supp. 512, 518 (S.D.Fla.1990) (intent of fraud no longer required); United States v. Oakwood Downriver Medical Center, 687 F.Supp. 302 (E.D.Mich.1988); United States v. Hercules, Inc., 929 F.Supp. 1418 (D.Utah 1996). An employer will not be able to escape liability by proving its ignorance of an employee’s false statement. The employee’s knowledge that a claim is false will be imputed to his or her employer. Entin, 750 F.Supp. At 519, United States v. DiBona, 614 F.Supp. 40, 44 (E.D.Pa. 1984). C. Damages, Civil Penalties and Costs: The False Claims Act provides that any person who violates its provisions is liable to the United States for “a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person.” 31 U.S.C. § 3729(a). Persons violating the Act are also" }, { "docid": "3499551", "title": "", "text": "matter jurisdiction, the court addresses it first. 1. Legal Standard Governing Federal FCA Claims The FCA, 31 U.S.C. §§ 3729 et seq., provides for “the recovery of civil penalties from those who knowingly present a false or fraudulent claim to the federal government for payment, or knowingly use a false record to avoid or decrease an obligation to pay the federal government.” Hagood v. Sonoma County Water Agency, 81 F.3d 1465, 1467 n. 1 (9th Cir.), cert, denied, 519 U.S. 865, 117 S.Ct. 175, 136 L.Ed.2d 116 (1996). Originally enacted to^ punish and prevent massive frauds perpetrated by large contractors during the Civil War, the FCA’s chief goal was to provide for restitution to the government of money taken from it by fraud. See United States v. Bomstein, 423 U.S. 303, 309, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976): The Supreme Court has refused to adopt a restrictive reading of the statutp, however, holding that the FCA is a “remedial statute [that] reaches beyond ‘claims’ which might be legally enforced, to all fraudulent attempts to cause the Government to pay out sums of money.” United States v. Neifert-White Co., 390 U.S. 228, 233, 88 S.Ct. 959, 19 L.Ed.2d 1061 (1968); United States v. McLeod, 721 F.2d 282, 284-85 (9th Cir.1983). The FCA authorizes individuals, known as “relators,” to file civil suits, known as “qui tam actions,” against persons who present false claims to the government. 31 U.S.C. § 3730. It makes liable any person who has (1) knowingly presented or caused to be presented a false or fraudulent claim; (2) knowingly made, used or caused to be made or used a false record or statement to get a false or fraudulent claim paid; or (3) conspired to defraud the government by getting a false or fraudulent claim paid. 31 U.S.C. § 3729(a)(l)-(3). The FCA defines “knowing” as having actual knowledge of information, or acting in either deliberate ignorance or reckless disregard of the information’s truth or falsity. 31 U.S.C. I 3729(b). Congress amended the FCA to include this definition to make “‘firm ... its intention that the act not punish" }, { "docid": "20879699", "title": "", "text": "the contractor presented to the United States a claim for payment; (2) the claim was false or fraudulent; (3) the contractor knew the claim was false or fraudulent; and (4) the United States suffered damages as a result of the false or fraudulent claim. Young-Montenay, Inc. v. United States, 15 F.3d at 1043 (quoting Miller v. United States, 213 Ct.Cl. 59, 550 F.2d 17 (1977)). “Knowledge” includes deliberate ignorance of the truth or reckless disregard of the truth, and in that case no proof of specific intent to defraud is required. 31 U.S.C. § 3729(b)(3). Daewoo presented a false claim for payment and knowingly used false records or statements to support the claim. The penalty is $10,000 plus three times the amount of damages. 31 U.S.C. § 3729(a)(3). “Claim” is defined broadly by the statute to include “any request or demand ... for money or property” from the Government. See § 3729(c). Typical examples of false claims in this court are those represented by invoices or similar “claims for payment.” Daewoo did not present invoices because the Government made progress payments according to amount of earth moved during a period of time. Because of substantial disagreement regarding the cubic meters of embankment or other earth-moving activities, such as cuts and fills, the Corps had representatives meet with Daewoo employees regularly to agree on such amounts. The Government made progress payments according to these stipulated amounts. The certified claim itself was false or fraudulent and plaintiff knew that it was false or fraudulent. Whether the United States suffered damages as a result, however, is a matter that we could not establish. See Commercial Contractors, 154 F.3d at 1371-72 (permitting statutory penalties under the False Claims Act but not treble damages in absence of actual damages) (citing United States v. Dyncorp, Inc., 136 F.3d 676, 681 (10th Cir.1998) (holding “the government need not prove damages to establish liability under the FCA, but can instead recover statutory penalties for a violation even absent any damages.”); Young-Montenay, Inc. v. United States, 15 F.3d at 1043;). 4. Fraud in the Inducement — • “Bait and" }, { "docid": "8544345", "title": "", "text": "made or used, a false record or statement to get a false claim or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; * * * (7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, is hable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus three times the amount of damages which the Government sustains because of the act of that person.... 31 U.S.C. § 3729. An action under the False Claims Act may be commenced in two ways. The United States Department of Justice may file suit to collect damages suffered as the result of fraudulent claims which cause government money to be expended from the United States Treasury. Alternatively, a private plaintiff may bring a qui tam action on behalf of the government to recover losses incurred because of fraudulent claims. 31 U.S.C. § 3730(b)(1). When a private plaintiff brings a qui tam action, the government is permitted to intervene. But the private plaintiff may continue his suit even if the government declines to intervene. 31 U.S.C. § 3730(c)(1). If the qui tam suit is ultimately successful, the private plaintiff, known as a relator, is entitled to up to 30% of the funds the government recovers. 31 U.S.C. § 3730(d). B. Relying on the qui tam provisions of the False Claims Act, Hutchins filed suit alleging that Wilentz, Goldman & Spitzer’s submission of inflated legal bills to the United States Bankruptcy Court violated § 3729(a)(1) of the False Claims Act. To establish a prima facie case under the False Claims Act a plaintiff must prove: (1) the defendant presented or caused to be presented to an agent of the United States a claim for payment; (2) the claim was false or fraudulent; and (3) the defendant knew the claim was false or fraudulent. Young-Montenay, Inc. v. United" }, { "docid": "3499552", "title": "", "text": "cause the Government to pay out sums of money.” United States v. Neifert-White Co., 390 U.S. 228, 233, 88 S.Ct. 959, 19 L.Ed.2d 1061 (1968); United States v. McLeod, 721 F.2d 282, 284-85 (9th Cir.1983). The FCA authorizes individuals, known as “relators,” to file civil suits, known as “qui tam actions,” against persons who present false claims to the government. 31 U.S.C. § 3730. It makes liable any person who has (1) knowingly presented or caused to be presented a false or fraudulent claim; (2) knowingly made, used or caused to be made or used a false record or statement to get a false or fraudulent claim paid; or (3) conspired to defraud the government by getting a false or fraudulent claim paid. 31 U.S.C. § 3729(a)(l)-(3). The FCA defines “knowing” as having actual knowledge of information, or acting in either deliberate ignorance or reckless disregard of the information’s truth or falsity. 31 U.S.C. I 3729(b). Congress amended the FCA to include this definition to make “‘firm ... its intention that the act not punish honest mistakes or incorrect claims submitted through mere negligence.’ ” United States ex rel. Hochman v. Nackman, 145 F.3d 1069, 1073 (9th Cir.1998) (quoting S.Rep. No. 99-345 at 7 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5272); see also United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir.1991) (“[T]he statutory definition of ‘knowingly1 requires at least ‘deliberate ignorance’ or ‘reckless disregard’ ”). Thus, “[t]he phrase ‘known to be false’ ... means [known to be] ‘a lie.’ ” Wang v. FMC Corp., 975 F.2d 1412, 1421 (9th Cir.1992); see United States ex rel. Anderson v. Northern Telecom, Inc., 52 F.3d 810, 815-16 (9th Cir.1995). “The FCA does not define false. Rather, courts decide whether a claim is false or fraudulent by determining whether a defendant’s representations are accurate in light of applicable law.” United States v. Bourseau, 531 F.3d 1159, 1170-71 (9th Cir.2008). “A civil action for False Claims Act liability requires four essential elements: ‘(1) a false statement or fraudulent course of conduct, (2) made with scienter, (3) that" }, { "docid": "5569784", "title": "", "text": "245 F.3d 1048, 1052 (9th Cir.2001)); accord McCready, 251 F.Supp.2d at 116 (“A court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant has been made aware of the particular circumstances for which she will have to prepare a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts.” (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.1999))). I. PRESENTMENT OF FALSE CLAIMS The FCA allows a private individual — a relator — to bring a cause of action seeking penalties and treble damages against anyone who “knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval[.]” 31 U.S.C. § 3729(a)(1) (1994). See United States ex rel. Siewick v. Jamieson Sci. & Eng’g, Inc., 214 F.3d 1372, 1374 (D.C.Cir.2000). “[T]he elements of section 3729(a)(1) are (1) the defendant submitted a claim to the government, (2) the claim was false, and (3) the defendant knew the claim was false.” United States ex rel. Harris v. Bernad, 275 F.Supp.2d 1, 6 (D.D.C.2003). The FCA does not require proof of a specific intent to deceive when a defendant presents false or fraudulent claims to the government. 31 U.S.C. § 3729(b) (1994); United States v. TDC Mgmt. Corp., Inc., 24 F.3d 292, 296 (D.C.Cir.1994). After relator Westrick filed his initial complaint, the government filed an amended complaint claiming that Second Chance made- — and that Toyobo caused to be made — fraudulent claims seeking payment from the government and its grantees. (Am. Compl. ¶ 114.) Toyobo moves to dismiss arguing that the complaint fails to provide the specific allegations required by Rule 9(b) to support liability under § 3729(a)(1). It contends that the government has not factually alleged that Toyobo knew of Second Chance’s false claims for payment or that it acted in deliberate ignorance or reckless disregard for the truth. (Defs.’ Mem. at 9.) Indeed, Toyobo contests that it presented any false statements to the government and asserts that" }, { "docid": "9459309", "title": "", "text": "L.Ed.2d 328 (1998). . The jury was instructed that the state and federal wrongful discharge claims were alter native theories of recovery and that Shaw was entitled to recover compensatory damages . only once. . Persons who violate the FCA are \"liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person....” 31 U.S.C. § 3729(a). The district court imposed a civil penalty of $5000 for each of the three false claims, resulting in $15,000 in total penalties. . The intent requirement under the FCA is defined as follows: \"Knowingly” means that a person, with respect to information— (1)has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. 31 U.S.C. § 3729(b). . Defendants conceded in their Rule 50 motion that disposing used fixer without first practicing silver recovery would violate the contract. . Defendants characterize Shaw's argument as saying that each monthly billing subsequent to the first improper disposal of used fixer constituted a “false or fraudulent claim.” This court, however, understands her argument to be slightly different: The invoices for each month in which AAA failed to practice silver recovery yet billed the government for the full amount under the contract constituted false claims. Also, because no silver recovery machine existed in AAA’s labs at TAFB until July 1993, it can be fairly inferred that the used fixer continued to be improperly disposed from April until July, or for three to four invoices. . We grant Defendants' application for leave to respond to the Amicus Curiae brief filed by the United States government. . In numerous cases, express false certification of compliance with a government contract provision has been the basis for an FCA claim. See, e.g., United States v. Rule Indus., . Inc., 878 F.2d 535, 536-37" }, { "docid": "6953956", "title": "", "text": "False Claims Act counterclaim: (1) that plaintiff submitted false claims in violation of the Act; and (2) that plaintiff submitted false records to support its false claims in violation of the Act. Each aspect will be discussed separately below. 1. False Claims Under the first part of defendant’s False Claims Act counterclaim, “[a]ny person who knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval ... is liable” to the Government for treble damages and civil penalties. 31 U.S.C. § 3729(a)(1) (emphasis added). In order to prevail on its § 3729(a)(1) counterclaim, defendant must show that: (1) the contractor presented or caused to be presented to an agent of the United States a claim for payment; (2) the claim was false or fraudulent; (3) the contractor knew the claim was false or fraudulent; and (4) the United States suffered damages as a result of the false or fraudulent claim. Young-Montenay, Inc. v. United States, 15 F.3d 1040, 1043 (Fed.Cir.1994) (citing Miller v. United States, 213 Ct.Cl. 59, 550 F.2d 17 (1977)). a. Claims for Payment Defendant asserts that each DD250 form submitted by plaintiff for howitzers containing ASC TMBs was a claim for payment under the False Claims Act. Defendant argues that the DD250 forms, once signed, were used as invoices. Citing United States v. Bomstein, 423 U.S. 303, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976), defendant avers that plaintiffs submission of each DD250 form constitutes a separate False Claims Act violation. Plaintiff concedes that the signed DD250 forms were used to secure payment for the howitzers accepted by defendant. Thus, the first element of the False Claims Act analysis is satisfied. b. False or Fraudulent Claims Defendant argues that each constructive delivery DD250 form was false or fraudulent because each represented that all contract requirements had been met, even though BMY knew this not to be the ease. Thus, plaintiff sought payment for howitzers when the TMBs had not been inspected as" }, { "docid": "9459308", "title": "", "text": "Para. 4.1.2, provides: Precious Metal Recovery Equipment. The contractor is required to provide any precious metal recovery equipment deemed necessary for proper disposal and/or recovery of precious metals/chemicals. All recovery disposal shall be accomplished by the contractor with all recovered materials remaining the property of the contractor. Contractor shall dispose of chemicals in accordance with EPA guidelines and standards. Section C-5, Para. 5.9 also states: \"The contractor shall establish a Precious Metals Recovery Program, to comply with Environmental Protection Agency requirements.” . At the close of Shaw's case-in-chief, Defendants moved for a dismissal of Shaw’s claims based on insufficient evidence, and this motion was incorporated by reference at the close of all the evidence. In addition, Defendants requested an instruction to the jury to return a “directed verdict” for the Defendants. This court construes Defendants’ motions as motions for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). Cf. FDIC v. UMIC, Inc., 136 F.3d 1375, 1382 n. 1 (10th Cir.), cert. denied, 525 U.S. 962, 119 S.Ct. 404, 142 L.Ed.2d 328 (1998). . The jury was instructed that the state and federal wrongful discharge claims were alter native theories of recovery and that Shaw was entitled to recover compensatory damages . only once. . Persons who violate the FCA are \"liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person....” 31 U.S.C. § 3729(a). The district court imposed a civil penalty of $5000 for each of the three false claims, resulting in $15,000 in total penalties. . The intent requirement under the FCA is defined as follows: \"Knowingly” means that a person, with respect to information— (1)has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. 31 U.S.C. § 3729(b). . Defendants conceded" }, { "docid": "9698870", "title": "", "text": "the allowed claim, and to permit distribution to be made to allowed claims in accordance with the confirmed plan. The debtors move herein for summary judgment to estimate the claim at zero. DISCUSSION The False Claims Act, 31 U.S.C. § 3729, et seq., provides in pertinent part that any person who (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval; (2) knowingly makes, uses-, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person, with certain exceptions. The terms “knowing” and “knowingly” as used in the statute do not require proof of specific intent to defraud the government, 31 U.S.C. § 3729(b)(3), but require that the defendant have “actual knowledge of the information,” or act “in deliberate ignorance of the truth or falsity of the information,” or act “in reckless disregard of the truth or falsity of the information.” 31 U.S.C. § 3729(b). See W. Jay DeVeochio, Qui Tam Actions: Same Practical Con siderations, SG013 ALI-ABA 399, 402 (2001). The private citizen plaintiff, referred to as the “realtor”, brings the cause of action, commonly known as a qui tam action, on behalf of the United States, and is entitled to a percentage of any recovery from the defendant. 31 U.S.C. § 3730(b). See also Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 182 (3d Cir.2001). The claimant’s qui tam action under the False Claims Act is based on the premise that the debtors and their predecessor, West End, knowingly failed to credit Medicaid for unused pharmaceutics which were returned to the debtors and resold either to Medicaid patients or patients funded by other programs. The debtors contend that the claim must be estimated at zero, because" } ]

[ { "docid": "3454173", "title": "", "text": "one where the district court has denied a motion to dismiss for want of jurisdiction which raised a novel question and is reluctant to embark upon an extended and costly trial until assured that its decision on the motion to dismiss is sustained. It is to be seen that this amendment requires judicial action both by the district court and by the court of appeals before a prospective appellant will be allowed to proceed with an appeal from an interlocutory decision not otherwise ap-pealable under § 1292. Though the appellate court is thus protected to some extent by the specified necessity that the party wishing to appeal prevail upon the district court to give the required certificate, it is evident that, if the district court is so persuaded, nonetheless the appellate court must do more than give a pro forma “rubber-stamp” approval of the district court’s certificate. In that respect the effect of the certificate of the district court differs from that which an express direction for the entry of final judgment might have under Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C. — a rule which is obviously inapplicable here. Although the statute does not expressly lay down standards to guide the court of appeals in its exercise of judicial “discretion”, it would seem that the appellate court should at least concur with the district court in the opinion that the proposed appeal presents a difficult central question of law which is not settled by controlling authority, and that a prompt decision by the appellate court at this advanced stage would serve the cause of justice by accelerating “the ultimate termination of the litigation”. In applying these standards, the court must weigh the asserted need for the proposed interlocutory appeal with the policy in the ordinary case of discouraging “piecemeal appeals”. Perhaps there is always some hardship caused by the application of the “final decision” rule. Yet the rule is beneficial in most applications, because piecemeal appeals would result in even greater hardships and tremendous additional burdens on the courts and litigants which would follow from" } ]

[ { "docid": "18901457", "title": "", "text": "in such order. The section sets out two requirements: this court must believe both that the issues decided by this order involve a close, controlling issue of law and that an appeal at this time could advance the final outcome of this litigation. Certification under section 1292(b) is far from the normal course of procedure. The federal scheme in general evidences a policy against piecemeal appeals. See Switzerland Cheese Assoc., Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 24-25, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966); Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 178, 75 S.Ct. 249, 99 L.Ed. 233 (1955); 28 U.S.C. §§ 1291, 1292(a). In determining whether defendant presents a controlling question of law, the court is mindful of the Ninth Circuit’s interpretation of that issue: The legislative history of subsection (b) of section 1292 . . . indicates that it was to be used only in extraordinary eases where decision of an interlocutory appeal might avoid protracted and expensive litigation. It was not intended merely to provide review of difficult rulings in hard cases. United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). The fact that there are no cases interpreting the provisions of 2 U.S.C. § 95, as applicable to this case, does not necessarily create substantial grounds for difference of opinion. See Barrett v. Burt, 250 F.Supp. 904, 907 (S.D.Iowa 1966). While certainly the ultimate termination of this litigation would be advanced if the Court of Appeals heard and sustained defendant’s defense at this time, the court is not of the opinion that this is a likely course of events. Therefore, the court will not invoke its discretionary authority to certify the issues decided in this order to the Court of Appeals under section 1292(b). Accordingly, it is, by this court, this 30th day of September, 1976, ORDERED that defendant’s motion to dismiss be, and hereby is, denied; and it is further ORDERED that defendant’s request for certification of the issues raised in this order to the Court of Appeals under 28 U.S.C. § 1292(b) be, and the same" }, { "docid": "18901456", "title": "", "text": "court concludes that the provisions of the contingent fund statute, 2 U.S.C. § 95, presents no bar to the present suit. Having rejected all four of defendant’s grounds to dismiss, the court must deny his motion. At oral hearing on this motion, defendant’s attorney requested that, in the event his motion to dismiss was denied, the court consider certification of the issues raised to the Court of Appeals under 28 U.S.C. § 1292(b). That question is now before the court. The Judicial Code provides a mechanism whereby a district court may certify a proper issue to the Court of Appeals before final decision in the case. Section 1292(b) provides: When a district judge, in making in a civil action an order not otherwise appeal-able under this section, shall be of the opinion that such 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 may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The section sets out two requirements: this court must believe both that the issues decided by this order involve a close, controlling issue of law and that an appeal at this time could advance the final outcome of this litigation. Certification under section 1292(b) is far from the normal course of procedure. The federal scheme in general evidences a policy against piecemeal appeals. See Switzerland Cheese Assoc., Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 24-25, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966); Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 178, 75 S.Ct. 249, 99 L.Ed. 233 (1955); 28 U.S.C. §§ 1291, 1292(a). In determining whether defendant presents a controlling question of law, the court is mindful of the Ninth Circuit’s interpretation of that issue: The legislative history of subsection (b) of section 1292 . . . indicates that it was to be used only in extraordinary eases where decision of an interlocutory appeal might avoid protracted and expensive litigation. It was not intended merely to provide review of difficult" }, { "docid": "17708703", "title": "", "text": "rule are nonexistent here. In short, then, this is a case in which the reasons to stray from the sound reasoning articulated by the Federal Circuit in Enzo are obvious and overwhelming. It would make no sense to punish the plaintiffs for poor draftsmanship in an assignment by forcing ChemTech to endure the hassle and expense of filing a new lawsuit and moving to consolidate it with this case, all the while forcing Gipson and Mattox to remain in a holding pattern for a case that is quite literally ready to proceed to trial now. Mattox’s Motion is therefore denied insofar as it seeks reconsideration of the undersigned’s ruling authorizing plaintiffs to submit a corrected assignment reflecting and confirming Gipson’s assignment to ChemTech of all his rights and interests in the '048 Patent. D. Certification for Interlocutory Appeal. In the event that the undersigned does not agree that reconsideration is warranted here, Mattox asks that the issues identified in its Motion to Reconsider be certified for interlocutory appeal to the Federal Circuit pursuant to 28 U.S.C. § 1292(b). When a district judge entering an interlocutory ruling “shall be of the opinion that such 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 may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.” 28 U.S.C. § 1292(b). The Eleventh Circuit has couched § 1292(b) interlocutory review as a “rare exception” to the general premise that the great bulk of appellate review must be conducted after final judgment. McFarlin v. Conseco Services, LLC, 381 F.3d 1251, 1264 (11th Cir.2004). “Because permitting piecemeal appeals is bad policy, permitting liberal use of § 1292(b) interlocutory appeals is bad policy.” Id. at 1259. One of the statutory prerequisites for invoking that “rare exception” to the prohibition on interlocutory appeals is that immediate appeal must “materially advance the ultimate termination of the litigation.” § 1292(b). The Eleventh Circuit has explained that this requirement means precisely what it says, to-wit: that “resolution" }, { "docid": "23161456", "title": "", "text": "each action: the motion was denied in Burkhart and was not ruled upon in Forsyth. Simply stated, the collateral order doctrine and section 1292(b) serve different goals. Section 1292(b) permits the district court to certify an order to the appellate court if the court is “of the opinion that such 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 may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Thus, institutional efficiency is a major purpose of the certification provision. Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958) (used in exceptional cases where an intermediate appeal would avoid protracted and expensive litigation). Accord, Kraus v. Board of County Road Commissioners for Kent County, 364 F.2d 919, 922 (6th Cir. 1966) (purpose to avoid protracted and expensive litigation); E. F. Hutton & Co. v. Brown, 305 F.Supp. 371, 402-03 (D.C.Tex.1969) (purpose to shorten time, effort, and expense exhausted between filing of lawsuit and its termination). A central goal of the collateral order doctrine, however, is to prevent the loss of rights merely because appellate review is delayed until the litigation has run its full course in the lower court. As noted in Briggs, “[s]ince the discretion of the trial judge whether to certify is itself unreviewable, the value of immediate review in the ‘small class’ of cases where it is warranted under the collateral order doctrine could be irretrievably lost if [the] view that denial of certification per se bars interlocutory review were to prevail.” 569 F.2d at 60. We hold that the denial of the defendants’ motions for summary judgment on the issue of absolute immunity is appeal-able under the Cohen collateral order doctrine. Appellate review at this time will conclusively determine the disputed question and will resolve an important issue completely separate from and collateral to the question of the defendants’ guilt or innocence. Moreover, the denial of absolute immunity is effectively unreviewable on appeal. Since the right which absolute immunity protects is the right" }, { "docid": "10250701", "title": "", "text": "28 U.S.C. § 1292(b) provides: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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 may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order_ 28 U.S.C. § 1292(b). Under this standard, leave to appeal from an interlocutory order will be granted only if the order (1) involves a controlling question of law (2) over which there is a substantial ground for difference of opinion and (3) if an immediate appeal would materially advance the ultimate termination of the litigation. Escondido, 137 B.R. at 116; see also Fischer v. 47th Street Photo, Inc., No. 92 Civ. 6529, 1993 WL 126525, *3 (S.D.N.Y. April 22, 1993) (Preska, J.) (same). Moreover, leave to appeal from interlocutory orders should be granted only in “exceptional circumstances” because to do otherwise would “contravene the well-established judicial policy of discouraging interlocutory appeals and avoiding the delay and disruption which results from such piecemeal litigation.” Escondido, 137 B.R. at 116 (citations omitted); see also In re Neshaminy Office Bldg. Assocs., 81 B.R. 301, 302 (E.D.Pa.1987) (“Only exceptional circumstances justify the hearing of an appeal before a final judgment is rendered.”). The present appeal does not meet this three-part test. The first two factors are not met because the approval of a disclosure statement, rather than involving a controlling question of law over which there is a substantial ground for difference of opinion, involves a fact-specific inquiry into the particular plan to determine whether it possesses “adequate information” under § 1125. In Texas Extrusion, the court explained: “The determination of what is adequate information is subjective" }, { "docid": "2013551", "title": "", "text": "the resolution of which by the court of appeals will materially advance the termination of the dispute. The district court must then certify that, in its opinion, these criteria are satisfied. Finally, the court of appeals must agree to hear the appeal. The provision reads in relevant part: When a district judge, when making in a civil action an order not otherwise ap-pealable under [section 1292], shall be of the opinion that such order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within 10 days after the entry of the order.... 28 U.S.C. § 1292(b) (emphasis added). Establishing the three criteria is not sufficient to guarantee an interlocutory appeal. The court of appeals may still refuse to hear the case in its full discretion “for any reason.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (“The appellate court may deny the [interlocutory] appeal for any reason, including docket congestion.”) (footnote omitted). Defendants’ motions for certification raise a serious question, namely, whether the district court, like the court of appeals, has unfettered discretion to deny certification where the statutory criteria are satisfied. It is defendants’ assertion—relying on the repeated use of the word “shall” in the provision—-that if the statutory criteria are met the district court must certify the order for interlocutory appeal. See Defs.’ Suppl.Mem.Supp.Cert. at 1-2. Consideration of the historic policy against piecemeal appeals embodied in the final judgment rule, as well as review of the legislative history and design of section 1292(b), leads to a contrary conclusion. District courts do have independent and “unreviewable” authority to deny certification even where the three statutory criteria are met. See, e.g., Executive Software N. Am.," }, { "docid": "8256442", "title": "", "text": "which damages are permitted under the temporal definition of the class. Since under plaintiffs’ theory a single amount of overcharge is attributable to each prescription, a subclass for an award for off-label use is not required. No other subclass is required. XXIII. Interlocutory Appeal When denying summary judgment in In re Zyprexa Prods. Liab. Litig., 493 F.Supp.2d 571 (E.D.N.Y.2007), this court noted that: Section 1292(b)’s requirements are not met in this case, even though both the substantive and procedural law relied upon by the parties are in a state of flux and not free from doubt. An immediate appeal might save considerable costs in discovery, preparation for trial, and trial. But an interlocutory appeal should await a decision on the critical question of class certification—an issue not yet considered by the court. When that question is decided by this court, the Court of Appeals can in its discretion decide the class certification issue under Rule 23(f) of the Federal Rules of Civil Procedure. For this reason, upon deciding on class certification this court plans to certify an interlocutory appeal under [28 U.S.C.] § 1292(b) so the class-procedural and substantive merits can be considered together by the appellate court. 493 F.Supp.2d at 580-81. Now that the critical question of class certification has been decided, the court continues to be of the opinion that its Order of June 28, 2007, denying Lilly’s motion for summary judgment, 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 may materially advance the ultimate termination of the litigation. An interlocutory appeal is certified on this court’s order denying summary judgment. The requirements of 28 U.S.C. § 1292(b) have been met. See 28 U.S.C. § 1292(b) (providing that a district court judge may certify an order to the Court of Appeals that is “not otherwise appealable” if the judge is “of the opinion that such order involves [1] a controlling question of law [2] as to which there is a substantial ground for difference of opinion and [3] that an immediate" }, { "docid": "5788083", "title": "", "text": "at 1520. Second, we are not convinced by Delta’s attempt to construe this action as an appeal from a final decision granting SST’s motion for summary judgment on the issue of a jury trial rather than as an interlocutory order compelling arbitration. We look to the general substance, form and practical effect of the district court’s order rather than focus on one aspect of the substantive basis for the district court’s ruling. Third, this case does not present the issue addressed in Thomson McKinnon Securities, Inc. v. Salter, 873 F.2d 1397 (11th Cir.1989). There, the Eleventh Circuit held that a district court’s decision compelling arbitration is considered final “where such an order is entered in the course of an action brought solely to compel specific performance of an agreement to arbitrate, ..., as it resolves the only issue before the district court.” Id., at 1399 (citations omitted). Delta originally brought this suit in state court to challenge SST’s alleged breach of their distribution contract. Only then did SST defend with a motion to compel arbitration. Section 15 is therefore properly applied to this appeal. Finally, Section 15’s exception for appeals pursuant to 28 U.S.C. § 1292(b) is inapplicable. Section 1292(b) permits the interlocutory appeal of an order when the district court certifies that the 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 may materially advance the ultimate termination of the litigation.” The district court made no certification in this case. However, this circuit recently held, in a case applying Section 15 retroactively and dismissing an appeal of an order compelling arbitration, that the appellant “should have an opportunity to request such certification because, at the time he appealed, the law did not require it.” Nichols v. Stapleton, 877 F.2d at 1403. We therefore remand this case to the district court with instructions to permit Delta to apply for Section 1292(b) certification within such time limits as the district court may order. Id. We indicate no opinion as to the proper disposition of" }, { "docid": "2013610", "title": "", "text": "statute in the form of § 1292(b) and the Judicial Conference approved the report at its 1953 meeting.” Katz v. Carte Blanche Corp., 496 F.2d 747, 753-54 (3d Cir.1974) (en banc). The draft was introduced by Chief Judge Charles E. Clark of the Second Circuit. See S.Rep. No. 85-2434 (1958). It was transmitted to Congress in 1957 where it was enacted in 1958 exactly as submitted. Id. 2. Discretion of District Court The wide discretion available to the district court judge in certifying orders for interlocutory appeal under section 1292(b) has generally not been remarked on in this circuit. It is well settled that, at a minimum, the district court judge must be of the opinion that the three statutory criteria laid out in section 1292(b) are satisfied, namely that the order (1) involves a controlling question of law, (2) about which there is a substantial ground for difference of opinion, and (3) that an immediate appeal would materially advance the ultimate termination of the litigation. See White v. Nix, 43 F.3d 374, 376-77 (8th Cir.1994) (district court abused its discretion in certifying an order for appeal where none of the criteria existed). Defendants lay out a somewhat novel understanding of the discretion available to the district court judge in considering a certification request under section 1292(b). See Defs.’ Suppl.Mem.Supp.Cert. at 2, 6 n. 1. They contend that the district court judge lacks discretion to deny a certification request if the three criteria are satisfied. They rely on the language of section 1292(b) which does seem to speak in mandatory terms. See 28 U.S.C. § 1292(b) (“When a district judge ... shall be of the opinion [that the three criteria are satisfied], he shall so state in writing.” 28 U.S.C. § 1292(b) (emphasis added)). The language of section 1292(b), however, is not decisive. As the discussion of the final judgment rule and its principle exceptions has already established, the Supreme Court and the courts of appeals have generally looked beyond statutory language to limit the exceptions. See supra Part III.B. Exceptions have been curtailed because of the historic federal policy" }, { "docid": "14075116", "title": "", "text": "because it represents the prior law of New Jersey. When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Defendants filed their present motion to certify the two motion to dismiss issues on March 18, 2003. Plaintiffs then filed their cross-motion to certify the motion to remand issue on April 7, 2003. The Court has considered the submissions of the parties, including their oral arguments on April 24, 2003, and finds, for the following reasons, that the three issues should be certified for interlocutory appeal. II. DISCUSSION The district court has discretion, pursuant to 28 U.S.C. § 1292(b), to certify issues for interlocutory appeal to the United States Court of Appeals, provided that “exceptional circumstances” justify the departure from the general rule that appellate review is only available after a final order. 28 U.S.C. § 1292(b); (see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Hulmes v. Honda Motor Co., Ltd., 936 F.Supp. 195, 208 (D.N.J.1996), aff'd, 141 F.3d 1154 (3d Cir.1998)); Carducci v. Aetna U.S. Healthcare, 2002 WL 31262100 (D.N.J. Jul.24, 2002). To show that “exceptional circumstances” justify certification, the moving party bears the burden of showing (1) that the order at issue involves a controlling issue of law, which if erroneously decided, would" }, { "docid": "5529565", "title": "", "text": "existence of an express remedy under section 9(e). See Wolgin v. Magic Marker Corp., 82 F.R.D. 168, 180 (E.D.Pa.1979). Defendants now request that I certify this issue for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (1976). For the reasons hereafter stated, I conclude that certification would be improper and that the motion must therefore be denied. Section 1292(b) authorizes a district court judge to certify for appeal a nonfinal order that “involves a controlling question of law as to which there is substantial ground for difference of opinion,” if he believes “that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (1976). Although section 1292(b) was enacted in 1958, “no uniform analysis of when it is proper to certify an order for appeal has yet emerged.” Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C. § 1292(b), 88 Harv.L.Rev. 607, 607-08 (1975) (footnote omitted). Within this circuit, however, two pronouncements by the court of appeals govern the application of this provision. First, sec tion 1292(b) “is to be used only in exceptional cases.” Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958). Second, the critical issue in each case is whether certification would promote the policies underlying interlocutory appeals, including “the avoidance of harm to a party pendente lite from a possibly erroneous interlocutory order and the avoidance of possibly wasted trial time and litigation expense.” Katz v. Carte Blanche Corp., 496 F.2d 747, 756 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). My order of April 9, 1979, plainly “involves a controlling question of law,” and plaintiffs do not seriously dispute the point. The court of appeals has stated that the term “controlling question of law” encompasses “at the very least every order which, if erroneous, would be reversible error on final appeal.” Katz v. Carte Blanche Corp., supra, 496 F.2d at 755. If I erred in denying defendants’ motion to dismiss, because section 9(e) is in fact the exclusive remedy available to plaintiffs, and" }, { "docid": "10291620", "title": "", "text": "the negligent service of alcohol in the New Jersey based nightclub, Polo Bay. Plaintiffs, Michael’s parents, sued Defendants to recover damages alleging violations under Pennsylvania’s Dram Shop law, 47 Pa.S. § 4-493. Defendants subsequently moved for summary judgment asserting that New Jersey’s dram shop law should control. By order dated June 28, 1993, this court denied Defendants’ motion for summary judgment finding instead that Pennsylvania law governed the case. Defendants now move to amend the June 28 Order pursuant to 28 U.S.C. § 1292(b). Specifically, Defendants assert that the conflict of law issue involves a controlling question of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1291 grants courts of appeal jurisdiction over appeals arising from a district court’s final order. Section 1292(b) creates a narrow exception to § 1291 by allowing the district court to certify an interlocutory order for immediate appeal. Section 1292(b), however, requires that the order from which the appeal is taken must 1) involve a controlling question of law; 2) offer grounds for a substantial difference of opinion; and 3) be of a nature that an immediate appeal would materially advance the ultimate termination of the litigation. Urbach v. Sayles, 779 F.Supp. 351, 353 (D.N.J.1991) citing Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.1974). It is well established that federal law expresses a strong policy against piecemeal appeals. Freeman v. Kohl & Vick Machine Works, Inc., 673 F.2d 196, 201 (7th Cir.1982). The Third Circuit has held that certification is to be used in exceptional cases where an immediate appeal would avoid protracted and expensive litigation. Milbert v. Bison Laboratories, 260 F.2d 431, 433 (3d Cir.1958). Section 1292(b) was not intended to open the floodgates to a vast number of interlocutory appeals in the course of ordinary litigation. Id. Certification is the exception, not the rule, and is left to the court’s sound discretion. Caruso v. Peat, Marwick, Mitchell & Co., 717 F.Supp. 218, 223 (S.D.N.Y.1989). Pursuant to" }, { "docid": "22912138", "title": "", "text": "judicial administration or efficiency to have piecemeal appeals that require two (or more) three-judge panels to familiarize themselves with a given case, instead of having the trial judge, who sits alone and is intimately familiar with the whole case, revisit a portion of the case if he or she has erred in part and that portion is overturned following the adjudication of the whole case. We note that if the dismissal here had involved only the legal effect of an indisputable government policy in undisputed circumstances, it would have been open to the district court to authorize Harriscom to petition for an immediate appeal by certifying that its “order involve[d] a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” 28 U.S.C. § 1292(b) (1988); see id. (upon district court’s entry of such an order, court of appeals, on a timely petition, may in its discretion allow an immediate appeal of the certified question). Section 1292(b), however, allows certification only of “question[s] of law.” Where, as here, the controlling issues are questions of fact, or, more precisely, questions as to whether genuine issues of material fact remain to be tried, the federal scheme does not provide for an immediate appeal solely on the ground that such an appeal may advance the proceedings in the district court. See Chappell & Co. v. Frankel, 367 F.2d 197, 200 n. 4 (2d Cir.1966) (“It is doubtful whether the denial of summary judgment when the applicable law is clear but there is a genuine issue as to a material fact can properly be certified under Section 1292(b), for that section is limited only to certifying an order involving a ‘controlling question of law.’”); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3930, at 160-61 (1977). In all the circumstances, we conclude that the Rule 54(b) certification in the present case was an abuse of discretion and that we lack jurisdiction to hear this appeal." }, { "docid": "822873", "title": "", "text": "issues raised by the defendants’ motion. The moving defendants now seek certification of Pretrial Order No. 183 for immediate appellate review pursuant to the Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292(b). Under § 1292(b), an order may be certified for interlocutory appeal if: 1) it involves a “controlling question of law;” 2) there is “substantial ground for difference of opinion” with respect to that question; and 3) immediate appeal “may materially advance the ultimate termination of the litigation.” We have canvassed recent Third Circuit case law with respect to § 1292(b) certification. While cognizant of the salutary principle that piecemeal litigation is to be avoided and that § 1292(b) is to be sparingly applied, we nonetheless conclude that it is appropriate that we certify to the court of appeals our order denying the motion to strike plaintiffs’ jury demand, accompanied by a statement that the controlling question of law is whether our decision — that the demand for trial by jury may not be stricken in this case — is correct. This conclusion is based upon the following discussion of § 1292(b). II. Controlling Question of Law This requirement for § 1292(b) certification has for the most part eluded precise definition. We do, however, find the discussion in Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974) most helpful on the question whether this case presents a “controlling question of law.” The court in Katz reasoned that, consistent with the statute’s purpose of avoiding wasted trials, “[a] controlling question of law must encompass at the very least every order which, if erroneous, would be reversible error on final appeal.” 496 F.2d at 755. In addition, the court’s interpretation of the legislative history of § 1292(b) led it to conclude that questions of law which would not lead to reversal on appeal may also be controlling if they are “serious to the conduct of the litigation, either practically or legally.” Possible savings of time of the district court and expense to the litigants are" }, { "docid": "18826480", "title": "", "text": "15,1982 for the purpose of determining the liability of Albert Cooper and David Porter, the FBI agents who conducted the electronic surveillance at issue in this case, and for the purpose of determining damages suffered by plaintiff Keith Forsyth. The Third Circuit’s remand concerned only defendant Mitchell. (599 F.2d 1203). On November 24, 1982, the defendants filed a motion for certification pursuant to 28 U.S.C. § 1292(b). On December 2, 1982, plaintiff filed a response opposing defendants’ motion. For the reasons hereinafter set forth, the Court will enter an order denying the motion. Title 28, § 1292(b) of the United States Code provides: When a district judge, in making in a civil action an order not otherwise appeal-able under this section, shall be of the opinion that such 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 may materially advance the ultimate termination of the litigation, he shall so state in writing such order. Thus, a district judge is authorized pursuant to § 1292(b) to certify for appeal a nonfinal order that involves a controlling question of law as to' which there is substantial ground for difference of opinion if he believes that an immediate appeal from the order may materially advance the ultimate termination of the litigation. The Court’s Order of November 12, 1982 granting partial summary judgment in favor of the plaintiff as to defendant Mitchell’s liability and denying other aspects of the cross-motions for summary judgment is not a final, appealable Order. Section 1292(b), certification for interlocutory appeal, is to be used only in exceptional cases. See Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir.1958) (en banc). The critical issue in each case is whether certification would promote the policies underlying interlocutory appeals, including the avoidance of harm to a party pendente lite from a possibly erroneous interlocutory order and the avoidance of possibly wasted trial time and litigation expense. See Katz v. Carte Blanche Corp., 496 F.2d 747, 756 (3d Cir.) (en banc), cert. denied, 419" }, { "docid": "2896465", "title": "", "text": "The Times’ Motion for Certification of Interlocutory Appeal. The Times contends that immediate interlocutory appeal is warranted in this case because the Court’s Order denying summary judgment involves controlling questions of law as to which there are substantial grounds for difference of opinion, and which would end this litigation if decided in favor of The Times. The Times seeks to certify the following issues: (1) whether Franklin is a public figure with respect to a newspaper article discussing marketing drugs on the Internet; (2) whether Franklin’s defamation action against The Times for harm to its reputation is governed by the law of New York, where the newspaper is published; and (3) whether Franklin is required to show that The Times intended or endorsed the defamatory implication under the defamation laws of Pennsylvania. Under the Interlocutory Appeals Act, 28 U.S.C. § 1292(b), a district court has the discretion to grant a section 1292(b) certificate if the Order “(1) involve[s] a controlling question of law, (2) offer[s] substantial ground for difference of opinion as to its correctness, and (3) if appealed immediately [would] materially advance the ultimate termination of the litigation.” Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.1974) (interpreting 28 U.S.C. § 1292(b)). The underlying purpose of interim appeal is to avoid a wasted trial. Id. at 755. Yet, the Court must carefully consider the appropriateness of certifying an order for interlocutory appeal. The Third Circuit has stated: It is quite apparent from the legislative history of the Act ... that Congress intended that section 1292(b) should be sparingly applied. It is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation and is not intended to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation. Milbert v. Bison Lab., Inc., 260 F.2d 431, 433 (3d Cir.1958); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (explaining that appellate review should be restricted to final decisions as it prevents the debilitating effect on judicial administration caused by piecemeal" }, { "docid": "2060226", "title": "", "text": "Court grants the request and certifies the August 28, 2008, Order for interlocutory appeal. Pursuant to 28 U.S.C. § 1292(b): When a district judge, in making in a civil action an order not otherwise ap-pealable under this section, shall be of the opinion that such 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 may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. Id. Thus, under this section, a non-final order may only be certified for interlocutory appeal if the court determines that it: (1) involves a “controlling question of law;” (2) for which there is “substantial ground for difference of opinion;” and (3) which may “materially advance the ultimate termination of the litigation” if appealed immediately. Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir.1974). Each of these elements must be met for certification to issue. Mitchell v. Axcan Scandipharm, Inc., Civ. A. No. 05-243, 2006 WL 986971, at *1 (W.D.Pa. Mar. 13, 2006). Even if all of the elements are satisfied, the decision to certify an interlocutory order for appeal under section 1292(b) “rests within the sound discretion of the trial court.” L.R. v. Manheim Twp. Sch. Nisi., 540 F.Supp.2d 603, 608 (E.D.Pa.2008) (internal quotations omitted). The burden remains on the party seeking certification to demonstrate that “exceptional circumstances justify a departure from the basic policy against piecemeal litigation and of postponing appellate review until after the entry of a final judgment.” Id. (internal quotations omitted). This Court finds that this matter presents an exceptional case justifying an immediate interlocutory appeal. As to the first element, the Third Circuit Court of Appeals has held that “controlling question of law” is one in which either: (1) if decided erroneously, would lead to reversal on appeal; or (2) is “serious to the conduct of the litigation either practically or legally.” Katz, 496 F.2d at 755 (citations omitted). “[0]n the practical level, saving of time of the district court and of expense to" }, { "docid": "2240736", "title": "", "text": "26, 2002, the Magistrate Judge ruled that BMS must elect whether it will raise a good faith/advice-of-counsel defense by August 1, 2002. The Magistrate Judge rejected a number of arguments that BMS had made to limit the scope of any waiver that would be associated with such a defense in a number of ways, prior to any assertion of a defense, and indicated that it would decide the motion relating to the crime-fraud exception after BMS made its election. See Report and Recommendation dated June 26, 2002, at 14 n. 3. BMS timely filed its present objections. II. BMS moves pursuant to 28 U.S.C. § 1292(b) for an order certifying for interlocutory appeal this Court’s Opinion and Order No. 19, which was filed on February 14, 2002. The Opinion and Order denied BMS’s motion to dismiss the plaintiffs’ antitrust and related state law claims on Noerr-Pennington grounds. Section 1292(b) provides that a district court may certify an interlocutory order for appeal if it is of the opinion that (1) the order “involves a controlling question of law”; (2) “as to which there is substantial ground for difference of opinion,” and (3) “that an immediate appeal of the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The determination of whether § 1292(b) certification is appropriate under these standards lies within the discretion of the district court. See, e.g., Ferraro v. Sec’y of U.S. Dep’t of Health & Human Servs., 780 F.Supp. 978, 979 (E.D.N.Y.1992) (collecting cases and citations). Interlocutory appeals under Section 1292(b) are an exception to the general policy against piecemeal appellate review embodied in the final judgment rule, and only “exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); see also Flor v. Bot Fin. Corp., 79 F.3d 281, 284 (2d Cir.1996) (per curiam) (collecting cases). Because piecemeal litigation is generally discouraged, the Court of Appeals has repeatedly emphasized that a district court is" }, { "docid": "822872", "title": "", "text": "decisions in order to determine whether questions of jury competence had been elevated to constitutional stature by the mention in Ross v. Bernhard of “the practical abilities and limitations of juries.” We determined that to so read the Ross dictum would be inconsistent with the intentions of the Supreme Court, with settled principles of jurisprudence, and with the very policies expressed in the Seventh Amendment itself. We have concluded, therefore, that the complexity of the case before us is not a constitutionally permissible reason for striking the plaintiffs’ jury demands. The defendants’ motion is denied. An appropriate order follows. MEMORANDUM AND ORDER OF CERTIFICATION PURSUANT TO 28 U.S.C. § 1292(b) I. Preliminary Statement In July, 1978, certain defendants in this consolidated antitrust litigation moved to strike the plaintiffs’ jury demand on the ground that the cases were individually and collectively beyond “the practical abilities and limitations” of any jury. In Pretrial Order No. 183, filed June 6,1979, we denied that motion. An accompanying opinion (hereinafter cited as “Jury Trial Opinion”) discussed at length the legal issues raised by the defendants’ motion. The moving defendants now seek certification of Pretrial Order No. 183 for immediate appellate review pursuant to the Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292(b). Under § 1292(b), an order may be certified for interlocutory appeal if: 1) it involves a “controlling question of law;” 2) there is “substantial ground for difference of opinion” with respect to that question; and 3) immediate appeal “may materially advance the ultimate termination of the litigation.” We have canvassed recent Third Circuit case law with respect to § 1292(b) certification. While cognizant of the salutary principle that piecemeal litigation is to be avoided and that § 1292(b) is to be sparingly applied, we nonetheless conclude that it is appropriate that we certify to the court of appeals our order denying the motion to strike plaintiffs’ jury demand, accompanied by a statement that the controlling question of law is whether our decision — that the demand for trial by jury may not be stricken in this case — is correct. This conclusion" }, { "docid": "16844449", "title": "", "text": "or injustice which would be visited upon Hoyt should he wait his turn and begin his climb up the appellate ladder (if such an ascent proves necessary) after the trial has been completed. In the absence of any exceptional circumstances, the course of prudence and of the orderly management of litigation is to avoid the essentially fragmentary appeal which the movant invites. Inasmuch as Hoyt has shown no convincing reason for the court to detour around standard procedures in his case, the motion for Rule 54(b) certification must be denied. Though it would doubtless be convenient for the movant to have the appellate court pass upon his usury argument in advance of trial on the merits, the caselaw forbids accommodating one party in such a fashion when to do so would run counter both to the easily perceived needs of his adversary and to the interests of the justice system itself. IY. Hoyt’s final request is that this court consider certification of the questions adjudicated in BONY I for interlocutory appeal under 28 U.S.C. § 1292(b). That statute provides in pertinent part as follows: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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 may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals ... may thereupon, in its discretion, permit an appeal to be taken from such order____ It is apodictic that interlocutory certification under § 1292(b) “should be used sparingly and only in exceptional circumstances, and where the proposed intermediate appeal presents one or more difficult and pivotal questions of law not settled by controlling authority.” McGillicuddy v. Clements, 746 F.2d 76, 76 n. 1 (1st Cir. 1984) (citation omitted). See also In re Heddendorf, 263 F.2d 887, 888-89 (1st Cir. 1959) (same). There are two integers in the § 1292(b) statutory equation — (i)" } ]

[ { "docid": "13665073", "title": "", "text": "that the Liquidating Trustee lacks standing. In addition, McFarland asserts five other issues: (1) the bankruptcy court lacked jurisdiction; (2) limitations extinguished the avoidance action; (3) McFarland was entitled to a jury trial; (4) the award of prejudgment interest was error; and (5) McFarland should have received full credit for the settlement of his co-defendant. We review findings of fact for clear error and legal conclusions de novo. Young v. National Union Fire Ins. Co. (In re Young), 995 F.2d 547, 548 (5th Cir.1993). When the district court has affirmed the bankruptcy court’s findings of fact, our review for clear error is strict. Id. I. Standing McFarland first contends that the Liquidating Trustee cannot exercise avoidance powers because it is neither the Debtor nor the Trustee. In this case, the Debtor acted as debtor-in-possession, and the bankruptcy court employed no trustee. The Plan created the position of Liquidating Trustee. McFarland’s argument runs counter to Section 1123 of the Code, which allows a plan to provide for “the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, [of any claim or interest belonging to the debtor or to the estate].” 11 U.S.C. § 1123(b)(3)(B) (1988). Section 1123(b)(3)(B) allows a plan to transfer avoid- anee powers to a party other than the debtor or the trustee. Briggs v. Kent (In re Professional Inn. Properties of America), 955 F.2d 623, 626 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 63, 121 L.Ed.2d 31 (1992); Citicorp Acceptance Co. v. Robison (In re Sweetwater), 884 F.2d 1323, 1327 (10th Cir. 1989). We agree with the Ninth and Tenth Circuits that a party other than the debtor or the trustee may be authorized by a plan of reorganization to exercise avoidance powers. Under § 1123(b)(3)(B), a party other than the debtor or the trustee that seeks to enforce a claim must show (1) that it has been appointed, and (2) that it is a representative of the estate. Retail Marketing Co. v. King (In re Mako, Inc.), 985 F.2d 1052, 1054 (10th Cir.1993); In" } ]

[ { "docid": "13477146", "title": "", "text": "not trust); see also Bogert & Bogert, supra note 23, § 17, at 216-17 (\"If the trustee becomes insolvent, the beneficiary may take all identifiable trust property from the assets of the insolvent trustee.... The general creditor, on the other hand, having no property interest in the assets owned by his debtor, must accept merely a dividend.” (footnotes omitted)). . In re Haber Oil Co., 12 F.3d at 436; accord In re Oxford Management, Inc., 4 F.3d 1329, 1335 (5th Cir.1993). . Georgia Pac. Corp. v. Sigma Serv. Corp., 712 F.2d 962, 969 (5th Cir.1983). . In re Bailey Pontiac, Inc., 139 B.R. 629, 635 (N.D.Tex.1992); see In re Haber Oil Co., 12 F.3d at 436 (noting that the imposition of a constructive trust can wreak havoc with the Code’s priority system). . In re Haber Oil Co., 12 F.3d at 436; In re Monnig’s Dep't Stores, Inc., 929 F.2d at 201; see, e.g., In re Oxford Management, Inc., 4 F.3d at 1336 (applying Louisiana law); Georgia Pac. Corp., 712 F.2d at 969 (applying Arkansas and Mississippi law). . In re Carolin Paxson Advertising, Inc., 938 F.2d 595, 597 (5th Cir.1991). . In re Haber Oil Co., 12 F.3d at 436 (citations omitted); see Southwest Livestock & Trucking Co. v. Dooley, 884 S.W.2d 805, 810 (Tex.Civ.App.—San Antonio 1994, writ denied) (stating that a constructive trust is a broad and far reaching remedy). . In re Monnig’s Dep’t Stores, Inc., 929 F.2d at 201; accord Exploration Co. v. Vega Oil & Gas Co., 843 S.W.2d 123, 127 (Tex.Civ.App.—Houston 1992, writ denied); see In re Haber Oil Co., 12 F.3d at 437 (noting that the imposition of a constructive trust is justified in generally two circumstances: actual fraud, or breach of a confidential or fiduciary relationship); In re Carolin Paxson Advertising, Inc., 938 F.2d at 597 (\"Texas law imposes such a trust when one obtains property by fraudulent means, when an absolute conveyance of property was performed but not intended, or when a party breaches a fiduciary-like relationship.”). \"We have summarized the elements of a constructive trust under Texas law as (1)" }, { "docid": "12633271", "title": "", "text": "behalf of the trustee after court approval. The Bankruptcy Code permits an individual creditor to pursue a fraudulent-conveyance action, for the benefit of the estate, in the name of the trustee but at the creditor’s own risk and expense. Moreover, a sale of assets under § 363 requires notice and. a hearing and is subject to court approval. See Cont’l, 780 F.2d at 1226. Courts will look to the trustee’s articulated business justification or sound business reasons for the proposed sale. Id. Any sale of § 544(b) actions would therefore undergo careful judicial scrutiny pursuant to existing § 363(b) requirements. We conclude, therefore, that the fraudulent-transfer claims are property of the estate under § 541(a)(1) per Educators, 25 F.3d at 1285-86. In the alternative, the fraudulent-transfer claims became estate property under § 544(b) and — like other estate property- — may be sold pursuant to § 363(b). The bankruptcy court’s ruling that the claims could not be sold was legal error, and its approval of the proposed settlement was an abuse of discretion. The court’s failure to consider the consequences to the estate of a sale was also an abuse of discretion. C. The Constructive-Trust Remedy. “Under Texas law, a constructive trust is ... an equitable remedy imposed by law to prevent unjust enrichment resulting from an unconscionable act.” Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 436 (5th Cir.1994). A constructive trust is not a cause of action under Texas law. The constructive-trust remedy is appropriate on a showing of actual fraud or breach of a confidential or fiduciary relationship. Id. at 436-37 (citations omitted). “The burden of establishing the existence of the constructive trust rests on the claimant, as does the burden of identifying and tracing the trust property.” Id. at 436 (citations omitted). If Cadle had demonstrated its entitlement to a constructive trust in the disputed properties by the time Moore filed for bankruptcy, those properties would belong exclusively to Cadle and would not be subject to pro rata distribution among all estate creditors. Id.; see also 11 U.S.C. § 541(d). But" }, { "docid": "1313150", "title": "", "text": "pleadings “s hall be freely given when justice so requires.” Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 667 (5th Cir.1981); Lay-field v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir.1979). Accordingly, this Court will allow the Trustee until November 30, 2010 to amend the Complaint, thus preventing undue delay and hardship on Graham. As such, this Court concludes that justice will be served by allowing the Trustee to amend the Complaint as to Graham so long as the amendment is filed by November 30, 2010. IY. Conclusion An order consistent with this Opinion will be entered on the docket simultaneously with the entry on the docket of this Opinion. . Reference to a \"Bankruptcy Rule” refers to the Federal Rules of Bankruptcy Procedure. Any reference herein to \"the Code” refers to the United States Bankruptcy Code. Further, reference to any section (i.e. § ) refers to a section in 11 U.S.C., which is the United States Bankruptcy Code. Reference to a “Rule” refers to the Federal Rules of Civil Procedure. . Rule 9(b) is made applicable to adversary proceedings by Bankruptcy Rule 7009 and causes of action under 11 U.S.C. §§ 544 & 548 are subject to the requirements of Rule 9(b). Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 439 (5th Cir.1994); see generally Kaye v. DuPree (In re Avado Brands, Inc.), 358 B.R. 868 (Bankr.N.D.Tex.2006). . This Court is aware that Twombly and Iqbal apply to Rule 8 and Rule 12(b)(6), and not Rule 9(b). However, it stands to reason that one could also infer a shift in pleading standards generally, requiring this Court to reexamine the relaxed pleading standards for Chapter 7 trustees, as set forth in 1991 by a Northern District of Texas bankruptcy court in Hunt. Indeed, in a case from 2010 from an Eastern District of Texas bankruptcy court, it is clear that the Hunt holding is questioned. Moser v. Dadyburjor (In re Sigma Sys.), Adv. No. 09-4126, 2010 WL 148176, at *3, 2010 Bankr.LEXIS 109, at *11 (Bankr.E.D. Tex. Jan 11, 2010) (\"Allegations" }, { "docid": "15923279", "title": "", "text": "Speech Products N.V., 310 F.3d 118, 122 (3d Cir.2002); Sunshine Development, Inc. v. F.D.I.C., 33 F.3d 106, 111 (1st Cir.1994); In re Eagle-Picker Industries, Inc., 963 F.2d 855, 858 (6th Cir.1992). B. Appeal from Stay of Litigation It is well settled that insurance policies are covered by the automatic stay provi sion of the Bankruptcy Code, see MacArthur Co. v. Johns-Manville Corp., 837 F.2d 89 (2d Cir.1988); see also Louisiana World Exposition, 832 F.2d at 1399 (“There are a great many bankruptcy cases holding that liability insurance policies that provide coverage for the bankrupt’s liability belongs to the bankrupt’s estate.” (emphasis in original)). The Ri-gases do not dispute that the policies involved in this appeal are an asset of the debtors’ estate, and are therefore subject to the automatic stay under 11 U.S.C. § 362(a)(3). The Rigases first prong of attack on the Bankruptcy Court’s order centers on whether the Bankruptcy Court correctly categorized the $300,000 of proceeds, that the Bankruptcy Court permitted them to claim under the policy, is an asset of the debtor, which remains subject to an automatic stay under 11 U.S.C. § 362(a)(3). Section 362(a)(3) automatically enjoins “all entities” from “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” Section 541 of the Bankruptcy Code defines “property” of a debtor’s estate as “all legal and equitable interests of the debtor.” While some courts have held that the proceeds of a D & O policy are property of the debtor’s estate and subject to the automatic stay, see, e.g., In re Vitek, 51 F.3d 530 (5th Cir.1995); In re Minoco of Group of Cos., Ltd., 799 F.2d 517 (9th Cir.1986); In re Sacred Heart Hospital of Norristown, 182 B.R. 413 (Bankr.E.D.Pa.1995); In re Circle K Corp., 121 B.R. 257 (Bankr.D.Ariz. 1990), others have held to the contrary, see, e.g., In re Louisiana World Exposition, 832 F.2d 1391 (5th Cir.1987); In re Youngstown Osteopathic Hosp. Ass’n, 271 B.R. 544 (Bankr.N.D.Ohio 2002); In re CHS Electronics, Inc., 261 B.R. 538 (Bankr.S.D.Fla.2001); In re" }, { "docid": "13477145", "title": "", "text": "constructive trust for another), cert. denied, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988); see 1 Epstein et al„ supra note 17, § 6-7, at 522 (\"[A] debtor's transfer of property held in trust by her is never a preference....'') (citing § 541(b)(1)). . In re Haber Oil Co., 12 F.3d 426, 436 (5th Cir.1994); see In re Sakowitz, Inc., 949 F.2d 178, 181 (5th Cir.1991) (\"[P]roperty held in trust for another is not property of the estate under 11 U.S.C. § 541 in the event of the trustee's bankruptcy.\" (citing Begier v. IRS, 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990)). . 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). . See generally George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 17, at 216-17 (2d rev. ed. 1984) (explaining distinction between the two \"equitable interests”). . See In re Monnig’s Dep’t Stores, Inc., 929 F.2d 197, 202 (5th Cir.1991) (holding that district court erred in imposing constructive trust where debtor-creditor relationship existed, not trust); see also Bogert & Bogert, supra note 23, § 17, at 216-17 (\"If the trustee becomes insolvent, the beneficiary may take all identifiable trust property from the assets of the insolvent trustee.... The general creditor, on the other hand, having no property interest in the assets owned by his debtor, must accept merely a dividend.” (footnotes omitted)). . In re Haber Oil Co., 12 F.3d at 436; accord In re Oxford Management, Inc., 4 F.3d 1329, 1335 (5th Cir.1993). . Georgia Pac. Corp. v. Sigma Serv. Corp., 712 F.2d 962, 969 (5th Cir.1983). . In re Bailey Pontiac, Inc., 139 B.R. 629, 635 (N.D.Tex.1992); see In re Haber Oil Co., 12 F.3d at 436 (noting that the imposition of a constructive trust can wreak havoc with the Code’s priority system). . In re Haber Oil Co., 12 F.3d at 436; In re Monnig’s Dep't Stores, Inc., 929 F.2d at 201; see, e.g., In re Oxford Management, Inc., 4 F.3d at 1336 (applying Louisiana law); Georgia Pac. Corp., 712 F.2d at 969 (applying Arkansas" }, { "docid": "7427846", "title": "", "text": "(In re Cumberland Farms, Inc.), 284 F.3d 216, 224 (1st Cir.2002). II. A. The Effect of the Standstill and Escrow Agreements on the Interests of the Parties in the Membership Interests at the time of the Bankruptcy Filing The commencement of a bankruptcy case creates a debtor’s estate, which is comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Generally, state law determines what interests the debtor holds in property. See, .e.g., Butner v. United States, 440 U.S. 48, 54 & n. 9, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) (“Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law.”); Musso v. New York State Higher Educ. Servs. Corp. (In re Royal Business School, Inc.), 157 B.R. 932, 940-42 (Bankr.E.D.N.Y.1993) (looking to state law to determine what rights the debtor had under an escrow agreement). A bankruptcy estate cannot succeed to a greater interest in property than the debtor held prior to bankruptcy. 11 U.S.C. § 541(d); see also Ga. Pac. Corp. v. Sigma Serv. Corp., 712 F.2d 962, 968 (5th Cir.1983) (“[T]he rule is elementary that the estate succeeds only to the title and right in the property that the debtor possessed .... ’’Xquotations omitted); TTS, Inc. v. Citibank, N.A. (In re TTS, Inc.), 158 B.R. 583, 585 (D.Del.1993) (“Section 541 does not give the debtor any greater rights to property than the debtor had before filing for Chapter 11.”). Thus, in this case, the bankruptcy estate’s interest in the Membership Interests is the same as — no more than and no less than — the interest that NTA held in the Membership Interests at the time of the bankruptcy filing. Prior to the state court litigation that led to the signing of the Standstill and Escrow Agreements, NTA owned the Membership Interests subject to Holding Company’s interest in those Membership Interests as security for Holding Company’s' loans to NTA. When the parties signed the Standstill and Escrow Agreements, however, those agreements superseded previous agreements between" }, { "docid": "3825618", "title": "", "text": "990, 996 (D.D.C.1985). Notwithstanding the borrowing of provisions of state law to define the nature of the third-party’s rights to property held by the debtor, a suit to exclude property from the bankruptcy estate is properly considered a core proceeding arising under the bankruptcy code. See Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 436 (5th Cir.1994) (“[Section] 541(d) accords the beneficiary of a constructive trust, properly imposed under state law, the right to recover the trust property from the bankruptcy trustee or the debt- or.”); cf. 28 U.S.C § 157(b)(3) (providing that a proceeding may be core even though “its resolution may be affected by State law”). The Fourth Circuit made this point clear in In re Johnson, in which the court stated: [T]he only proper forum for determining whether assets held by a debtor are held in constructive trust is the bankruptcy court, and such proceedings must be considered core proceedings. A determination of the proper beneficiaries of that trust is inextricably tied to the finding of a constructive trust. Distribution of the trust to the proper beneficiaries necessarily is predicated upon a determination of who those beneficiaries are. The finding of a constructive trust by the bankruptcy court and a determination of the proper distribution of that trust are intimately tied to the traditional bankruptcy functions and estate, and, therefore, are core matters within the clear jurisdiction of the bankruptcy court. Canal Corp. v. Finnman (In re Johnson), 960 F.2d 396, 402 (4th Cir.1992). As FNB highlights in its motion to withdraw the reference, this case does not present a typical case wherein a creditor seeks to impose a constructive trust on property held by the debtor. In this ease, the property allegedly subject to a constructive trust for Dwyer’s benefit is not held by the debtor; it was seized by FNB prior to the filing of the bankruptcy petition to setoff against debts O’Brien owed to the bank. Accordingly, FNB argues that this case is factually distinguishable from In re Johnson. FNB therefore urges the Court to follow the lead of" }, { "docid": "4717632", "title": "", "text": "and, therefore, “impairs” the debtor’s homestead exemption. Additionally, the district court determined that allowing a debtor to avoid a judicial lien on his homestead property furthers the Bankruptcy Code’s important objective of allowing the debtor to gain a fresh start in his financial life. Finally, the district court reasoned that because Texas courts have consistently acknowledged that the homestead law is entitled to the most liberal construction, the Hendersons should be allowed to avoid the lien. II. STANDARD OF REVIEW This court reviews findings of fact by the bankruptcy court under the clearly erroneous standard and decides issues of law de novo. Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 434 (5th Cir.1994). “A finding of fact is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed.’ ” Wilson v. Huffman (In re Missionary Baptist Found. of Am., Inc.), 712 F.2d 206, 209 (5th Cir.1983) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). III. DISCUSSION Section 522(f)(1) of the Bankruptcy Code provides: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien[.] In order for a debtor to avoid a lien on exempt property under § 522(f)(1), a debtor must show: (1) that the lien is a judicial lien; (2) that the lien is fixed against an interest of the debtor in property; and (3) that the lien impairs an exemption to which the debtor would otherwise be entitled. Hart v. Hart (In re Hart), 50 B.R. 956, 960 (Bankr.D.Nev.1985). In this case, both parties agree that Belknap has a judicial lien and that the Caldwell County property is the Hendersons’ homestead. The district court determined that even" }, { "docid": "8747920", "title": "", "text": "not property of the estate under 11 U.S.C. § 541 in the event of the trustee’s bankruptcy”); Georgia Pac. Corp. v. Sigma Serv. Corp., 712 F.2d 962, 968 (5th Cir.1983) (finding that neither state lien statutes nor a joint-check arrangement created constructive trusts for the benefit of Sigma’s materialmen but noting that if “all or part of the money so owed was subject to a constructive trust in favor of the suppliers ... the bankruptcy court would be required to recognize those equitable interests and, perhaps, the debtor in possession’s sole permissible administrative act ... would be to pay over or endorse the sums due to the beneficial owners of the property”). , Thus, if Marrs-Winn held “only legal title and not an equitable interest” in the funds located in the Magna Account as a result of a valid trust arrangement, Giberson could not properly acquire an interest in those proceeds via the Financing Order. As such, we must determine whether the Subcontract created a valid trust arrangement. 2. The Express Trust. The question of whether a debtor’s interest in property is “property of the estate” is a federal question to be decided by federal law, yet courts must look to the applicable state law to determine the extent (if any) of the Debtor’s legal or equitable interest in the property. In re Yonikus, 996 F.2d 866 (7th Cir.1993); see Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979) (“Property interests are created and defined by state law.”); UNR Indus., Inc. v. Continental Cos. Co., 942 F.2d 1101, 1103 (7th Cir.1991) (“State law controls the determination of assets in a bankrupt estate, unless federal interests require a different result.”). In that regard, we must first determine which state’s laws to apply in interpreting the extent of Marrs-Winn’s interest in the Magna Account funds. The Subcontract included a choice of law provision which provided that the law of Missouri, the site of the project location, would govern any legal disputes. Neither party challenges the application of Missouri law. Thus, we look to Missouri law" }, { "docid": "13407809", "title": "", "text": "of action against Lindsey; computation of the amount of costs and attorney’s fees; and dismissal of Cadle’s third-party complaint against Lindsey. Further, Cadle complains that the district court erred in concluding that Cadle did not have a cause of action against Svara under bankruptcy law and in holding that it lacked subject matter jurisdiction to hear and dispose of Cadle’s third-party claim against Svara. We, however, disagree with all of Cadle’s contentions. II. STANDARD OF REVIEW We review the bankruptcy court’s findings of fact for clear error, and we will reverse “only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been made.” Allison v. Roberts (In re Allison), 960 F.2d 481, 483 (5th Cir.1992); see also Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994); Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 434 (5th Cir.1994). By contrast, we review issues of law de novo. In re Henderson, 18 F.3d at 1307; In re Haber Oil Co., 12 F.3d at 426; In re Allison, 960 F.2d at 483. III. DISCUSSION A. Bankruptcy Contribution Claim Cadle argues that the district court erred in concluding that there was no cause of action for contribution under § 362 of the Bankruptcy Code. Additionally, Cadle contends that the bankruptcy court had jurisdiction over its third-party claim against Svara through federal question jurisdiction, apparently based on the notion that its contribution claim is based on federal law. More specifically, Cadle asserts that the entire ease, including the third-party demand against Svara, revolved around the application of 11 U.S.C. § 362. According to Cadle, “[i]f this third-party demand were brought as an independent indemnity action, it could be brought in federal court, as the primary issue to be determined would be whether a violation of § 362 occurred.” Therefore, Cadle posits that the district court had federal question jurisdiction under 28 U.S.C. § 1331. Cadle’s contention, however, is misplaced, as there is no contribution action in" }, { "docid": "20832929", "title": "", "text": "1199, 1201 (5th Cir.1993) (\"Where a federal court lacks jurisdiction, its decisions, opinions, and orders are void.”). . In re Walker, 51 F.3d 562, 568 (5th Cir. 1995). . 28 U.S.C. § 1334(a). . 28 U.S.C. § 1334(e)(1); see also Kane Enters. v. MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir.2003) (\"The district in which a chapter 11 petition is filed has exclusive jurisdiction over the property of the estate.”). . See 28 U.S.C. § 1334(b). . 28 U.S.C. § 157(a). . Bankruptcy judges \"may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11” and \"enter appropriate orders and judgment.” 28 U.S.C. § 157(b); In re Wood, 825 F.2d 90, 95 (5th Cir. 1987). In contrast to core proceedings, bankruptcy judges have the limited power to “hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11” and to “submit proposed findings of fact and conclusions of law to the district court,” subject to de novo review. 28 U.S.C. § 157(c); In re Wood, 825 F.2d at 95. . In re Quemer, 7 F.3d at 1201. . In re Wood, 825 F.2d at 93. . 11 U.S.C. § 541(a)(1). . Id. § 541(a)(6). . Id. § 541(a)(7). . In re Klein-Swanson, 488 B.R. 628, 633 (8th Cir. BAP 2013). . In re Swift, 129 F.3d 792, 795 & n. 12 (5th Cir.1997); In re Klein-Swanson, 488 B.R. at 633. . See In re IFS Fin. Corp., 669 F.3d 255, 262 (5th Cir.2012) (noting that, under Texas law, “control over funds in an account is the predominant factor in determining an account’s ownership”); see also In re Kemp, 52 F.3d 546, 551-53 (5th Cir.1995) (per curiam) (holding that funds held in escrow are “property of the estate” only to the extent of the debtor’s independent right to that property); In re Missionary Baptist Found, of Am., Inc., 792 F.2d 502, 505-06 (5th Cir.1986) (same). . In re Stonebridge Techs., Inc., 430 F.3d 260, 269 (5th Cir.2005)" }, { "docid": "13477137", "title": "", "text": "were not part of Southmark’s estate. Likewise, the district court erred in affirming the bankruptcy court on a constructive trust theory. Accordingly, the bankruptcy court’s order dismissing Southmark’s preference claim against Grosz, as affirmed by the district court, is reversed, and this matter is remanded to the bankruptcy court for further proceedings consistent with this opinion. REVERSED and REMANDED. . As a debtor in possession in a Chapter 11 reorganization proceeding, Southmark has all the rights and powers of a trustee, which includes the right to avoid a payment under § 547. See Georgia Pac. Corp. v. Sigma Serv. Corp., 712 F.2d 962, 966 n. 1 (5th Cir.1983). . The remaining $75,030.96 was for future consulting services. . The Payroll Account is funded periodically from a concentration bank account (the \"Concentration Account”), which is maintained primarily to receive deposits from Southmark and its subsidiaries and affiliates. Those funds are then shifted as needed to other Southmark accounts. The Concentration Account is also in the name of, and operated without restriction by, Southmark. . Southmark originally filed its petition in the Northern District of Georgia, but the case was subsequently transferred to the bankruptcy court in the Northern District of Texas. . In re Jones, 966 F.2d 169, 172 (5th Cir.1992) (citing Fed.R.Civ.P. 56(c) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)); see In re Baudoin, 981 F.2d 736, 739 (5th Cir.1993). . In re Kolstad, 928 F.2d 171, 173 (5th Cir.) (citing Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1307 (5th Cir.1985)), cert. denied, 502 U.S. 958, 112 S.Ct. 419, 116 L.Ed.2d 439 (1991). . See 11 U.S.C. § 547(b) (1988). . Although the district court does not expressly use the phrase \"constructive trust” in its judgment (that court referred only to a. “quasi trust”), the record indicates that the court affirmed the bankruptcy court based on that theory. See In re Carolin Paxson Advertising, Inc., 938 F.2d 595, 597 (5th Cir.1991) (\"A constructive trust generally arises when a person with legal title to property owes equitable" }, { "docid": "13477141", "title": "", "text": "have been used to pay Southmark’s creditors. . In re Haber Oil Co., 12 F.3d 426, 443 (5th Cir.1994) (quoting United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir.1986)); accord In re Oxford Management, Inc., 4 F.3d at 1334. . In re Haber Oil Co., 12 F.3d at 442-43 (citing Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 968, 99 L.Ed.2d 169 (1988)). . In re Oxford Management, Inc., 4 F.3d at 1334 (quoting Sutton, 786 F.2d at 1308). . 4 Collier on Bankruptcy, supra note 11, ¶ 541.11, at 541-74 (\"Deposits in a bank to the credit of a debtor become property of the estate under section 541(a)(1).”); see In re Bellanca Aircraft Corp., 850 F.2d 1275, 1279 (8th Cir.1988) (same); In re Bullion Reserve of N. Am., 836 F.2d 1214, 1217 (9th Cir.) (stating that money in commingled bank accounts under debtor's control \"presumptively constitutes property of the debtor’s estate\"), cert. denied, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988). . See Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1358 (5th Cir.1986) (noting that \"key” in determining if funds are part of debtor's estate is whether debtor \"controls” the funds); cf. In re Coutee, 984 F.2d 138, 141 & n. 3 (5th Cir.1993) (per curiam) (stating that debtor is mere \"conduit or agent\" if party does not obtain \"actual dominion or control over funds”); see also In re Kemp Pac. Fisheries, Inc., 16 F.3d 313, 316-17 (9th Cir.1994) (per curiam) (holding transfer to be preferential where creditor \"did not exercise the requisite control over the funds or place any limits whatsoever on the parties to whom debtor could present checks\"); In re Cybermech, Inc., 13 F.3d 818, 820-21 (4th Cir.1994) (holding transfer to be preferential where funds were commingled with other money, and debtor had “right to withdraw, transfer, or otherwise use the payment funds in any way it wanted\"); In re Chase & Sanborn Corp., 813 F.2d 1177, 1181 (11th Cir.1987) (noting that \"any funds under the control of the debtor, regardless of their source, are properly deemed" }, { "docid": "13477144", "title": "", "text": "Inc., 797 F.2d at 1356 (citing with approval case explaining that key question in determining if transaction is preferential is whether transferred assets would otherwise have been available to pay claims of other creditors); see 4 Collier on Bankruptcy, supra note 11, ¶ 547.03, at 547-22.2 (\"The fundamental inquiry [in determining whether a transfer is preferential] is whether the transfer diminished or depleted the debtor's estate.”) . See Coral Petroleum, Inc., 797 F.2d at 1359 (funds in debtor's account not part of debtor's estate where debtor never had control over funds); see, e.g., Georgia Pac. Corp. v. Sigma Serv. Corp., 712 F.2d 962, 971-72 (5th Cir.1983) (funds received by debtor are part of estate, unless irrevocable agreement compels debtor to use money exclusively for creditor’s benefit); see also In re Auto-Train Corp., 810 F.2d 270, 274 (D.C.Cir.1987) (same). . In re Bullion Reserve of N. Am., 836 F.2d 1214, 1217 n. 3 (9th Cir.) (explaining that presumption that funds in. debtor’s account belong to its estate is overcome by showing that funds were held in constructive trust for another), cert. denied, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988); see 1 Epstein et al„ supra note 17, § 6-7, at 522 (\"[A] debtor's transfer of property held in trust by her is never a preference....'') (citing § 541(b)(1)). . In re Haber Oil Co., 12 F.3d 426, 436 (5th Cir.1994); see In re Sakowitz, Inc., 949 F.2d 178, 181 (5th Cir.1991) (\"[P]roperty held in trust for another is not property of the estate under 11 U.S.C. § 541 in the event of the trustee's bankruptcy.\" (citing Begier v. IRS, 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990)). . 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). . See generally George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 17, at 216-17 (2d rev. ed. 1984) (explaining distinction between the two \"equitable interests”). . See In re Monnig’s Dep’t Stores, Inc., 929 F.2d 197, 202 (5th Cir.1991) (holding that district court erred in imposing constructive trust where debtor-creditor relationship existed," }, { "docid": "8747919", "title": "", "text": "in Gittens’ hands as trust funds” and Gittens never “possessed the right to use the contract balances at issue ... for its own benefit.” Id. at 372-73: The Sixth Circuit addressed a similar issue in Federal Insurance Co. v. Fifth Third Bank, 867 F.2d 330 (6th Cir.1989). There, the court held that two progress payments delivered by the State of Ohio to a contractor pursuant to a construction agreement were trust funds to be held for the benefit of job creditors. Id. at 331-34. Thus, the contractor’s lender could not offset-these payments against the debt it was owed by the contractor. Id. at 332-34. Even those decisions that ultimately hold that a contract or state law does not create an express or constructive trust adhere to the principle that a bankruptcy estate does not include those properties to which the debtor retains only bare legal title. See, e.g., In re Sakowitz, Inc., 949 F.2d 178, 181 (5th Cir.1991) (finding neither an express nor implied trust but noting that “property held in trust for another is not property of the estate under 11 U.S.C. § 541 in the event of the trustee’s bankruptcy”); Georgia Pac. Corp. v. Sigma Serv. Corp., 712 F.2d 962, 968 (5th Cir.1983) (finding that neither state lien statutes nor a joint-check arrangement created constructive trusts for the benefit of Sigma’s materialmen but noting that if “all or part of the money so owed was subject to a constructive trust in favor of the suppliers ... the bankruptcy court would be required to recognize those equitable interests and, perhaps, the debtor in possession’s sole permissible administrative act ... would be to pay over or endorse the sums due to the beneficial owners of the property”). , Thus, if Marrs-Winn held “only legal title and not an equitable interest” in the funds located in the Magna Account as a result of a valid trust arrangement, Giberson could not properly acquire an interest in those proceeds via the Financing Order. As such, we must determine whether the Subcontract created a valid trust arrangement. 2. The Express Trust. The question of" }, { "docid": "3825617", "title": "", "text": "a debtor’s creditors is limited to those assets and interests possessed by the debtor at the time of the filing of the petition and those possessed by others which are swept into the bankruptcy estate by operation of the bankruptcy code. See 18 U.S.C. § 541. Specifically excluded from the bankruptcy estate is “[pjroperty in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest.” Id. § 541(d). “[W]hat constitutes an ‘equitable interest’ subject to exclusion from the bankruptcy estate under § 541(d) is a question of state law.” Old Republic Nat'l Title Ins. Co. v. Tyler (In re Dameron), 155 F.3d 718, 722 (4th Cir.1998). Where the debtor holds mere legal title to property, it is appropriate for the court to impose a constructive trust on the property for the benefit of the third-party owner of the beneficial interest in the property. The availability of a constructive trust as a remedy likewise is a question of state law. See In re Auto-Train Corp., 53 B.R. 990, 996 (D.D.C.1985). Notwithstanding the borrowing of provisions of state law to define the nature of the third-party’s rights to property held by the debtor, a suit to exclude property from the bankruptcy estate is properly considered a core proceeding arising under the bankruptcy code. See Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 436 (5th Cir.1994) (“[Section] 541(d) accords the beneficiary of a constructive trust, properly imposed under state law, the right to recover the trust property from the bankruptcy trustee or the debt- or.”); cf. 28 U.S.C § 157(b)(3) (providing that a proceeding may be core even though “its resolution may be affected by State law”). The Fourth Circuit made this point clear in In re Johnson, in which the court stated: [T]he only proper forum for determining whether assets held by a debtor are held in constructive trust is the bankruptcy court, and such proceedings must be considered core proceedings. A determination of the proper beneficiaries of that trust is inextricably tied to the finding of a" }, { "docid": "14669363", "title": "", "text": "Bankruptcy Code, a debtor’s legal and equitable interests in property, “as of the commencement of the case,” constitute “[property of the estate,” 11 U.S.C. § 541(a)(1). Property in which the debtor holds only legal title and not an equitable interest, however, becomes property of the estate “only to the extent of a debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold,” id. § 541(d). That is, the bankruptcy estate does not include “property of others in which the debtor ha[s] some minor interest such as a lien or bare legal title,” United States v. Whiting Pools, Inc., 462 U.S. 198, 204 n. 8, 103 S.Ct. 2309, 2313 n. 8, 76 L.Ed.2d 515 (1983); see 4 Collier on Bankruptcy If 541.13, at 541-75 (15th ed.1989) (estate succeeds only to the title and rights that the debtor possessed); In re Quality Holstein Leasing, 752 F.2d 1009, 1012 (5th Cir.1985) (same). Where the debtor’s “conduct gives rise to the imposition of a constructive trust, so that the debtor holds only bare legal title to the property, subject to a duty to reconvey it to the rightful owner, the estate will generally hold the property subject to the same restrictions,” In re Flight Transp. Corp. Securities Litigation, 730 F.2d 1128, 1136 (8th Cir.1984); see Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962, 968 (5th Cir.1983). Indeed, the Supreme Court has declared that, while the outer boundaries of the bankruptcy estate may be uncertain, “Congress plainly excluded property of others held by the debt- or in trust at the time of the filing of the petition,” Whiting Pools, 462 U.S. at 205 n. 10; see S.Rep. No. 989, 95th Cong., 2d Sess. 82 and H.R.Rep. No. 595, 95th Cong., 2d Sess. 368, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5868, 6323-24; see also In re Kennedy & Cohen, Inc., 612 F.2d 963, 965 (5th Cir.) (under previous bankruptcy statute, property held by debt- or in constructive trust “belongs to the beneficiary and never becomes a part of" }, { "docid": "12633272", "title": "", "text": "failure to consider the consequences to the estate of a sale was also an abuse of discretion. C. The Constructive-Trust Remedy. “Under Texas law, a constructive trust is ... an equitable remedy imposed by law to prevent unjust enrichment resulting from an unconscionable act.” Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 436 (5th Cir.1994). A constructive trust is not a cause of action under Texas law. The constructive-trust remedy is appropriate on a showing of actual fraud or breach of a confidential or fiduciary relationship. Id. at 436-37 (citations omitted). “The burden of establishing the existence of the constructive trust rests on the claimant, as does the burden of identifying and tracing the trust property.” Id. at 436 (citations omitted). If Cadle had demonstrated its entitlement to a constructive trust in the disputed properties by the time Moore filed for bankruptcy, those properties would belong exclusively to Cadle and would not be subject to pro rata distribution among all estate creditors. Id.; see also 11 U.S.C. § 541(d). But that did not occur; at the filing of the petition, Cadle and the defendants had only filed cross-motions for summary judgment. The constructive-trust remedy is therefore intertwined with the alter ego and fraudulent-transfer claims. Like the underlying claims, that remedy belongs to the estate. Cadle may thus acquire the constructive-trust remedy if it successfully purchases the underlying causes of action. III. Whether a trustee’s proposed compromise of estate claims can constitute a proposed sale of estate property that triggers § 363 sale provisions is an issue of first impression in this circuit. The bankruptcy court’s power to approve a proposed settlement or “compromise” of the estate’s claims arises under rule 9019 of the Federal Rules of Bankruptcy Procedure. A proposed settlement must be “fair and equitable,” and in the best interests of the estate. Am. Can Co. v. Herpel (In re Jackson Brewing Co.), 624 F.2d 605, 608 (5th Cir.1980). Five factors inform the “fair and equitable” analysis: (1) the probability of success in the litigation, with due consideration for the uncertainty in fact and" }, { "docid": "23028569", "title": "", "text": "have a valid, exempt IRA. Swift’s causes of action against State Farm, then, are to replace what would have been a valid IRA, not the non-exempt account of which State Farm speaks. As a replacement for exempt property, we hold that Swift’s causes of action are exempt property for purposes of his bankruptcy proceedings. IV. In conclusion, we find that Swift’s causes of action against State Farm accrued before Swift filed his bankruptcy petition because he suffered actual damage before the filing. Those causes of action became the property of the bankruptcy estate under 11 U.S.C. § 541. But, they are exempt property under Texas Prop.Code § 42.0021. Swift has standing to pursue these causes of action against State Farm. The district court’s decision is AFFIRMED. . A Keogh plan is a retirement plan for self-employed individuals that was authorized by the Self-Employed Individuals Tax Retirement Act of 1962. Bittker and Lokken, Federal Taxation of Income, Estates, and Gifts (2d ed.) ¶ 62.2 (1990). This plan allows the self-employed taxpayer to deduct certain contributions made to qualifying retirement plans from the taxpayer’s annual tax return. It also allows for the deferral of taxes on the contributions and the gains attributable to the retirement plan until such time as the laxpayer receives a distribution from the plan. See id. at V 61.1.1. . See 11 U.S.C. § 522(b)(1). . Tex. Prop.Code. Ann. § 42.0021 (West 1997). . In re Swift, 124 B.R. 475, 483-86 (Bankr.W.D.Tex.1991). . In re Swift, 126 B.R. 725 (Bankr.W.D.Tex.1991). . In re Swift, 3 F.3d 929 (5th Cir.1993). . For purposes of this appeal only, we assume that Swift’s causes of action are viable. . In re Swift, 198 B.R. 927 (Bankr.W.D.Tex.1996). . See Peaches Entertainment Corp. v. Entertainment Repertoire Assoc., Inc., 62 F.3d 690, 693 (5th Cir.1995). . 11 U.S.C. § 541(a)(1). . Louisiana World Exposition v. Federal Ins. Co., 858 F.2d 233, 245 (5th Cir.1988). . \"Property interests are created and defined by state law.” Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136, 141-42 (1979); In the Matter" }, { "docid": "12204007", "title": "", "text": "claimant ahead of other creditors with respect to the trust res. 11 U.S.C. § 541(a)(1), (d); Howard’s Appliance, 874 F.2d at 93. It is therefore not the debtor who generally bears the burden of a constructive trust in bankruptcy, but the debt- or’s general creditors. This type of privileging of one unsecured claim over another clearly thwarts the principle of ratable distribution underlying the Bankruptcy Code. As a consequence bankruptcy courts have been reluctant, absent a compelling reason, to impose a constructive trust on the property in the estate. See First Cent., 377 F.3d at 217-18 (collecting cases); Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d 426, 436 (5th Cir.1994); Omegas Group, 16 F.3d at 1452 (“Constructive trusts are anathema to the equities of bankruptcy since they take from the estate, and thus directly from competing creditors, not from the offending debtor.”). The Cadle Creditors make no argument as to why Flanagan’s bankrupt estate or, more to the point, Flanagan’s general creditors, would be unjustly enriched by the estate’s continued ownership interest in the Thompson & Peck stock. Accordingly, we affirm the bankruptcy court’s refusal to impose a constructive trust on the stock. B. Availability of an Equitable Lien In the alternative, the Cadle Creditors declare that an equitable lien should be imposed on the Thompson & Peck stock to the extent of their claims. This point was not raised before the bankruptcy court, but appears to have been prompted by language in the district court’s opinion. In noting that the appellants were not claiming they rightfully owned the stock, but only that they were entitled to reach the stock as security for their claims, the district court observed that an “equitable remedy that would give Cadle a perfected lienholder status might be best described as an ‘equitable lien.’ ” Mangan, 316 B.R. at 22. The district court then went on to dismiss the possibility of imposing an equitable lien because it concluded that “an equitable lien, even if enforceable, would not relate back” to before the preference period. Id. at 23. We generally will not" } ]

[ { "docid": "21589129", "title": "", "text": "the test for reviewing sufficiency of the evidence is essentially identical under state law as under the Constitution. The genealogy of the state caselaw renders that fact doubly clear. The Commonwealth does not allege that Nadwomy advanced any new factual allegations in the district court. The confluence of these factors lifts petitioner over the jurisdictional bar; the equivalency in presentation was enough to meet our “face-up and squarely” test. Martens, 836 F.2d at 717. Beyond Nadworny’s sufficiency-of-the-evidence claim, the district court also termed two more grounds in the application unexhausted. These claims dealt with the constitutional requirement that the jury be instructed on lesser included offenses. Nadwomy contends that they are “indistinguishable as a matter of substance....” Petitioner’s Brief at 25. The Commonwealth seemingly agrees; it treated the two claims as one in its brief, and made no attempt to differentiate between them at oral argument. Taking our lead from the parties, we therefore integrate these two claims for purposes of the ensuing discussion. Cf. Williams, 691 F.2d at 7 (“specific claims [can] incorporate the general claims”). Petitioner argues that his lesser included offense claim has been exhausted. Our job is not to analyze the grounds on which the Commonwealth’s courts decided the issue, Dyer, 749 F.2d at 86 n. 1, but to ask if the claim is properly raised by federal habeas, and if so, whether the state courts were likely alerted to its federal nature. First, we take note that the facts which underb-race the claim federally are the same as were presented to the state courts. Our inquiry next shifts from facts to theory. Although the precedent which petitioner cited differed somewhat between court systems, we believe that such modest variation is an insufficient distinction. See, e.g., Harris v. Scully, 779 F.2d 875, 878 (2d Cir.1985) (fact that habeas petitioner cited authorities in federal court different from those cited in state court not determinative of exhaustion analysis). On the whole, the legal theory espoused in state court, and federally, was fundamentally equivalent. Indeed, the Commonwealth does not claim otherwise; it argues only that, “[f]or all that appears" } ]

[ { "docid": "4494239", "title": "", "text": "Cir.1989); 28 U.S.C. §§ 2254(b)-(e). In this instance, the Commonwealth asserts that the “presumptive prejudice” claim is unexhausted (and, therefore, not justiciable) because the petitioner did not present it “face-up and squarely” to the state courts. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.1988). We do not agree. The exhaustion doctrine honors hallowed principles of federal-state comity. It serves to ensure that the state courts are sufficiently apprised of a federal claim to have a meaningful opportunity to address that claim. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In order to achieve exhaustion, the petitioner must have presented both the factual and legal underpinnings of his federal claim to the state’s highest court. Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir.1994). A claim of non-exhaustion presents a purely legal question, engendering de novo review. See Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir.1997). Here, all the relevant facts were presented to the Supreme Judicial Court of Massachusetts in the petitioner’s unsuccessful application for leave to obtain further appellate review (ALOFAR). In addition, the ALOFAR openly exposed the petitioner’s speedy trial claim and specifically alleged that “the Commonwealth failed to rebut the ‘presumption of prejudice’ due to the unusually lengthy delay.” Given this presentation, we think it is likely that a reasonable jurist would have recognized the federal constitutional dimensions of the petitioner’s claim. No more is exigible to satisfy the exhaustion requirement. See, e.g., Barresi v. Maloney, 296 F.3d 48, 52-56 (1st Cir.2002); Nadworny, 872 F.2d at 1096-99. On the merits, Doggett is the mainstay of the petitioner’s “presumptive prejudice” argument. See Doggett, 505 U.S. at 655 (explaining that “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify”). Doggett establishes that, when the pretrial delay is grossly excessive, the fourth Barker factor can tilt in the defendant’s favor even though no showing of actual prejudice has been made. See Aguirre, 994 F.2d at 1455. This does not mean, however, that the presumption is either automatic or inexorable. See" }, { "docid": "23171697", "title": "", "text": "find that the OCCA’s determination that counsel was not ineffective was an unreasonable application of federal law. II. Double Jeopardy and Liberty Interest Hale next argues that his constitutional rights were violated when the State of Oklahoma prosecuted him for first-degree murder and kidnapping for purposes of extortion following his conviction in federal court for extortion under the Hobbs Act, 18 U.S.C. § 1951. Specifically, Hale argues the state prosecutions were barred by Okla. Stat. tit. 21, § 25 (repealed 1986), and that Oklahoma’s failure to enforce that statute amounted to a deprivation of his liberty interest. Appellee contends that Hale failed to exhaust this claim fully with regard to the murder conviction and thus habeas relief should be denied pursuant to 28 U.S.C. § 2254(b)(1). On direct appeal Hale argued (1) that he could not be tried for the crime of kidnapping under the Oklahoma Constitution, because he had already been convicted of extortion in federal court under the Hobbs Act, and (2) that the state prosecutions for kidnapping and first degree murder violated the Oklahoma Double Jeopardy Clause. Thus, Hale did not raise a federal constitutional claim on direct appeal. In Hale’s second application for post-conviction relief, Hale did raise a federal constitutional claim; however, the claim raised in the second application challenged only the kidnapping conviction and did not challenge the murder conviction. The OCCA did not address this claim on post-conviction review finding that it had been raised on direct appeal and was therefore barred. See Hale III, 934 P.2d at 1102. Thus, the issue as it concerns the murder charge has not been exhausted. See Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam) (petitioner failed fairly to present federal habeas claim to state courts where, in state court proceedings, he relied only upon state law authority to challenge jury instruction). Nevertheless, the Supreme Court has held that if a petitioner “failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would" }, { "docid": "21738458", "title": "", "text": "likely than not that a reasonable jurist would recognize the constitutional dimensions of the petitioner’s claims, given the manner in which those claims were presented. See Nadworny, 872 F.2d at 1101. To resolve the question before us, then, we must direct our attention primarily to Barresi’s ALOFAR. See Adelson 131 F.3d at 263 (“[T]he decisive pleading [under Massachusetts practice] is the application for further appellate review, and we must determine whether the petitioner fairly presented the federal claim to the SJC within ‘the four corners’ of that application.”) (quoting Mele v. Fitchburg Dist. Court, 850 F.2d 817, 823 (1st Cir.1988)). Nevertheless, while our inquiry must focus on the “four corners” of the ALOFAR, we have never held that appellate review is confined to an examination of that pleading in isolation. Rather, we have acknowledged that, under certain circumstances, the pleadings and filings submitted by a habeas petitioner to lower state courts (e.g., a motion for new trial or a brief submitted to an intermediate appellate court) provide “a backdrop against which his later filings [must] be viewed.” Scarpa v. DuBois, 38 F.3d 1, 7 (1st Cir.1994). In fact, in Scarpa, we explicitly rejected the proposition that prior circuit precedent restricts the exhaustion inquiry exclusively to an examination of the petitioner’s ALOFAR. Id. at 8 n. 3. III. Turning to the facts of this case, we are persuaded that, while petitioner certainly could have raised his federal constitutional issues in a more plain and direct manner, his ALOFAR, particularly when read against the “backdrop” of his earlier filings in the intermediate appellate court, was minimally sufficient to apprise the SJC of the continuing federal constitutional dimension of his appeal. We begin with Barresi’s intermediate appellate brief. In that pleading, Barresi unmistakably argued that the trial court’s evidentiary rulings deprived him of rights guaranteed by the Sixth and Fourteenth Amendments. For example, Barresi asserted that “[a] criminal defendant possesses a constitutional right under the Sixth and Fourteenth Amendments to the United States Constitution as well as under Article 12 of the Massachusetts Declaration of Rights to ‘confront’ adverse witnesses, even where it" }, { "docid": "23371430", "title": "", "text": "\"look through” to see what the state appeals court did on the merits of Casey’s case, because the merits of the federal issue were not raised until Casey appealed. . Other courts have recognized that if state court paths to exhaustion exist, petitioner should take them or risk procedural default. See, e.g., Gunter v. Maloney, 291 F.3d 74, 81-82 (1st Cir.2002) (concluding that petitioner's ineffective assistance of counsel claim, raised for the first time to the state’s highest court on discretionary review, did not constitute fair presentation, and noting that the petitioner \"could have filed a motion for a new trial as he was entitled to do as of right under Massachusetts law,\" in collateral proceedings: \"[Wjhere the claim has not been fairly presented on direct appeal, as happened here, it should be fairly presented to the state court through a motion for collateral relief. Because Gunter did not do so, he has not exhausted his claim of ineffective assistance.”) (internal citation omitted). See also Figueroa v. Portuondo, 96 F.Supp.2d 256, 276-78 (S.D.N.Y.1999) (claim was exhausted notwithstanding failure to raise it on direct appeal because petitioner fully litigated claim in state coram nobis proceeding). . The Washington State Supreme Court denied Casey's petition for review on June 5, 2001. He filed his habeas petition in federal court on August 29, 2002, more than a year after the final entry of judgment. . So far as we can determine, none of the statutory exceptions applies to him. These exceptions cover newly discovered evidence, conviction by a statute that is later determined to be unconstitutional on its face or as applied, a double jeopardy violation, insufficiency of evidence after a not guilty plea, a sentence imposed in excess of the court's jurisdiction, or a significant change in law. . If a state procedural bar is an adequate and independent ground warranting dismissal, relief by writ of habeas corpus is foreclosed in federal court unless the petitioner can show cause for the procedural default and resulting prejudice, or show that a failure to consider his claims would result in a fundamental miscarriage of" }, { "docid": "5917965", "title": "", "text": "6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971)). As long as the state courts were provided the opportunity to rule upon a claim, their failure to explicitly do so will not affect the exhaustion analysis. See Smith v. Digmon, 434 U.S. 332, 333-34, 98 S.Ct. 597, 598-99, 54 L.Ed.2d 582 (1978). In providing the state courts with such an opportunity, petitioner need not “cite book and verse on the federal constitution”; however, he must present the state courts with the “substantial equivalent” of his federal claims. Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971); see also Santana v. Fenton, 685 F.2d 71, 74 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). This requirement is satisfied only when the state courts have been exposed to the relevant facts and controlling legal principles set forth in the federal petition for habeas corpus. See Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986); Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (en banc). There is no question that the facts alleged in support of the instant petition are identical to those previously presented before the New Jersey courts. Moreover, I conclude that the federal constitutional dimension of petitioner’s double jeopardy claim was adequately presented to the state courts. In his various appeals before the New Jersey courts, petitioner’s sentencing objections were expressly grounded upon state law. However, a review of the ease law cited by petitioner reveals that some of those cases on which he relied invoke the double jeopardy protections afforded by the New Jersey Constitution. See N.J. Const., art. I ¶ 11 (1947); and see, e.g., State v. Davis, 68 N.J. 69, 83, 342 A.2d 841, 846 (1975), cited in Brief for Appellant at 10, State v. Wooten, No. A-3657-84T4 (NJ.Super.Ct.App.Div. June 30, 1988). Hence, the State courts were fairly presented with a double jeopardy claim under the State constitution. Despite the restrictive wording of New Jersey’s Double Jeopardy Clause," }, { "docid": "23561414", "title": "", "text": "1. The threshold question in this case is whether Fortini exhausted his state remedies. The Commonwealth says that Fortini “did little if anything to properly alert the Commonwealth’s courts that he was asserting a federal constitutional claim” and thus he is not entitled to habeas review. The district court agreed, finding that while Fortini had argued that the exclusion of the basketball court incident implicated state evidence law issues, he had not adequately raised the constitutional claim. We review de novo the district court’s dismissal on this ground. Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir.1997). Exhaustion requires that a petitioner have “fairly presented to the state courts” his constitutional claim. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). This requires that the issue be presented “in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question,” Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir.1994), cert. denied, 513 U.S. 1129, 115 S.Ct. 940, 130 L.Ed.2d 885 (1995), for example, by “specific constitutional language, constitutional citation, [or] appropriate federal precedent....” Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir.1989). By contrast, “a passing reference” to a constitutional issue will not preserve it for habeas review. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.1988). Exhaustion is a closer issue than either side admits, but in the end we think that Fortini did adequately present his federal claim based on Chambers v. Mississippi in the state appellate courts. The first section in Fortini’s brief to the Massachusetts Appeals Court—attacking the exclusion of the basketball court episode—was titled, “The Trial Court Violated The Defendant’s State And Federal Constitutional Rights to Due Process And A Fair Trial By Denying Him The Right To Present Highly Relevant Evidence.” His petition for further appellate review to the SJC included virtually identical language. In addition, the first case cited in the section was Chambers v. Mississippi After discussing the factual predicate for the legal claim, the section concluded with further citations to Chambers and Webb v." }, { "docid": "21738466", "title": "", "text": "right to due process was infringed. Third, Barresi's ALOFAR invokes state decisional authority that specifically addresses the federal constitutional character of issues he sought to litigate. Finally, the ALOFAR's \"backdrop\"-Bar-resi's intermediate appellate brief-plainly and unequivocally raised the same federal constitutional issues presented in the AL-OFAR, and relied upon citations to appropriate federal authority. So, notwithstanding the lack of citation to any federal authority in the ALOFAR itself, when viewed against the “backdrop” of Barresi’s lower court pleadings, the AL-OFAR was minimally sufficient to alert a reasonable jurist to the fact that Barresi was seeking review of alleged trial court errors that had a decided federal constitutional dimension. And, unlike the petitioner in Mele, nothing in the record suggests that Barresi abandoned the federal constitutional claims he advanced before the intermediate appellate court. That conclusion is compelled by Barresi’s references in the ALOFAR to his “due process guarantees,” his right to “piresent an effective challenge to the complainant’s credibility,” the trial court’s alleged “impermissible infringement on [his] right to cross-examine her,” as well as his reliance on state court precedent that unambiguously considered and addressed the federal constitutional dimension of those issues. Consequently, while it is rare that a petitioner will be found to have successfully presented a federal constitutional claim to a state’s highest court without referring to federal precedent, see Adelson, 131 F.3d at 263, in our judgment, this case manages to fall across the line separating exhausted from unex-hausted claims. IV. As noted earlier, resolving cases like this requires an individualized, case-specific, factual inquiry. Whether a petitioner’s enigmatic state pleadings were sufficient, alone or in combination, to apprise a reasonable jurist of the federal constitutional dimensions of his or her claims will often prove difficult to determine. Reasonable minds can, of course, fairly debate the ultimate resolution of such fact-specific issues. Nevertheless, rather than impose “bright line” rules likely to prove overly restrictive, we think it appropriate to continue to focus primarily on the claims actually presented in the pleadings filed in the state’s highest court — the ALOFAR in the Commonwealth — but also to consider the" }, { "docid": "23676181", "title": "", "text": "would violate the Double Jeopardy Clause, the court must exclude it. Cf. Ashe v. Swenson, 397 U.S. at 442-43, 90 S.Ct. at 1193-94 (“[If] collateral estoppel is embodied in [the] guarantee [against double jeopardy], then its applicability ... is no longer a matter to be left for state court determination within the broad bounds of ‘fundamental fairness,’ but a matter of constitutional fact we must decide through an examination of the entire record.”) (citations omitted). Thus, a state appellate court deciding whether a trial court abused its discretion by admitting evidence of prior crimes faces a much different legal question than a state court deciding whether the same evidence must be excluded because its admission would violate the Double Jeopardy Clause. See Steele v. Taylor, 684 F.2d 1193, 1206 (6th Cir.1982) (admissibility of tape recording was presented to state courts as state law evidentiary question of “other act” evidence rather than as federal due process claim; court holds this claim unexhausted), cert. denied, — U.S. -, 103 S.Ct. 1502, 75 L.Ed.2d 932 (1983); see also United States ex rel. Nance v. Fairman, 707 F.2d 936, 941 (7th Cir.1983). As discussed above, a habeas petitioner cannot present a legal question to the federal courts that he has not raised before the state courts. Because the New York courts have had only the opportunity to rule on the state evidentiary claim, we cannot yet rule on the federal constitutional claim. Finally, we note that although Petrucelli did clearly raise a double jeopardy argument in his Appellate Division brief, Appellant’s State Brief at 22-27, his claim was that he could not constitutionally be tried twice for the manslaughter of Gernie. This is not the constitutional collateral es-toppel claim that we find was not exhausted in the state courts. Our decision in Daye v. Attorney General is important in helping federal courts determine whether federal constitutional claims were presented to state courts. It is not, however, a signal to habeas petitioners that every argument remotely resembling a federal constitutional claim puts state courts on notice of the constitutional nature of the claim. Here, Petrucelli’s" }, { "docid": "5917966", "title": "", "text": "F.2d 135, 138 (3d Cir.1986); Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (en banc). There is no question that the facts alleged in support of the instant petition are identical to those previously presented before the New Jersey courts. Moreover, I conclude that the federal constitutional dimension of petitioner’s double jeopardy claim was adequately presented to the state courts. In his various appeals before the New Jersey courts, petitioner’s sentencing objections were expressly grounded upon state law. However, a review of the ease law cited by petitioner reveals that some of those cases on which he relied invoke the double jeopardy protections afforded by the New Jersey Constitution. See N.J. Const., art. I ¶ 11 (1947); and see, e.g., State v. Davis, 68 N.J. 69, 83, 342 A.2d 841, 846 (1975), cited in Brief for Appellant at 10, State v. Wooten, No. A-3657-84T4 (NJ.Super.Ct.App.Div. June 30, 1988). Hence, the State courts were fairly presented with a double jeopardy claim under the State constitution. Despite the restrictive wording of New Jersey’s Double Jeopardy Clause, its scope has long been held to embrace the more expansive double jeopardy protections embodied in the common-law. State v. Currie, 41 N.J. 531, 536, 197 A.2d 678 (1964). Consequently, the New Jersey Supreme Court has held the Double Jeopardy Clauses of the state and federal constitutions to be coextensive in both scope and application. See State v. Farmer, 48 N.J. 145, 168, 224 A.2d 481 (1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967). Thus, a double jeopardy claim premised on New Jersey law is indistinguishable from a federal double jeopardy claim. See State v. Sanders, 107 N.J. 609, 618-620, 527 A.2d 442 (1987); State v. Dively, 92 N.J. 573, 578, 458 A.2d 502 (1983). When the “substance of ... [a] state claim is virtually indistinguishable from the [constitutional] allegation raised in federal court[],” the claim will be considered exhausted for purposes of habeas corpus. Santana, 685 F.2d at 74 (quoting Bisaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3d Cir.), cert. denied, 449 U.S. 1042, 101" }, { "docid": "17295212", "title": "", "text": "S.Ct. at 1199, 1205. The most forthright way to present a constitutional claim to a state court is, of course, to recite the relevant facts and then make an explicit constitutional argument. See, e.g., Daye, 696 F.2d at 192 (“Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts.”). A habeas petitioner in state court is not required, however, to cite “chapter and verse” of the Constitution to satisfy the exhaustion rule. Id. at 194. Instead, he may fairly apprise the state court of a federal constitutional claim by relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that “call to mind a specific right protected by the Constitution,” or alleging facts that fall “well within the mainstream of constitutional litigation.” Id. If the issue is presented to the state court in any of these less precise ways, the federal habeas court should treat it as exhausted. (1) Double jeopardy claim We agree with the district court that Levine did not raise the double jeopardy claim in his letter application to the Court of Appeals seeking collateral review of his sentence. His only argument was that there was a conflict between appellate divisions as to when consecutive sentences may be imposed in larceny cases — a state law issue. The state, in its letter opposing leave to appeal, adverted to double jeopardy by noting that a case relied upon by Levine, People v. Abbamonte, 43 N.Y.2d 74, 400 N.Y.S.2d 766, 371 N.E.2d 486 (1977), was “concerned with double jeopardy issues, not consecutive sentences.” Only then, in his “reply” to the state’s letter, did Levine pick up on the double jeopardy theme: Fourth, the Attorney General’s purported distinction of People v. Abbamonte (43 N.Y.2d 74 [400 N.Y.S.2d 766, 371 N.E.2d 485]) as resting on double jeopardy concerns only is unsound. The principles of double jeopardy operate to prevent multiple punishment where, as here, the prosecutor is simply fragmenting the same" }, { "docid": "23172377", "title": "", "text": "claim of double jeopardy under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), was actually raised in the state courts, the state courts were never fully advised of the specific jury instruction that was claimed to be determinative of the double jeopardy claim. We rejected the contention that we should consider the writ “because appellant did raise a double jeopardy issue in the state courts.” Similarly, in Wilson v. Fogg, 571 F.2d 91 (2d Cir. 1978), we refused to decide a constitutional claim that the defendant had been prejudicially tried in absentia, on the ground that the appeal in the state court had focused on state grounds and that “there is no mention of any invasion of Wilson’s constitutional rights in the entire text of Point I.” Id., at 93. We noted there that even though the cases cited in Wilson’s brief in the Appellate Division also addressed the issue in constitutional terms, the brief, nevertheless, did not give the state court a fair opportunity to pass on the constitutional question. Another ease in which the underlying complaint appeared, on the surface, to be the same in the state appeal was Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976). There, as here, the habeas petition presented to the District Court the same federal constitutional claims which petitioners had raised for the first time in their certiorari petition in the United States Supreme Court. There the contention was that a detective’s claim of Fifth Amendment privilege with respect to an affidavit in support of a warrant prejudiced the defendants contrary to their Fourth, Fifth and Sixth Amendment rights. We held that the claim on the state appeal had been made only under state law and, hence, did not satisfy the exhaustion requirement. The ground of federalism previously mentioned as a basis for the doctrine of exhaustion of state remedies is particularly cogent in cases such as this where the conduct of the state trial judge is at issue. See, e. g., Wilson v. Fogg, supra, at 93; Fielding v. Le Fevre, 548 F.2d 1102, 1106" }, { "docid": "21738457", "title": "", "text": "7 (1st Cir.1987) (citations omitted). But the list developed in Gagne is merely illustrative; it does not purport to be exhaustive. So, for example, in Nadworny, we recognized that there “is yet another species of exhaustion which merits attention. An individual’s claim, arising under and asserted in terms of state law, may, as a practical matter, be indistinguishable from one arising under federal law.” 872 F.2d at 1099. It necessarily follows that each case in which a petitioner is alleged to have inadequately presented his or her federal constitutional claims to the state’s highest court is both sui generis and fact-driven, turning on its own unique circumstances. See, e.g., Adelson, 131 F.3d at 262 (observing that “our de novo appellate review of a district court’s dismissal of a habeas petition for want of exhaustion is necessarily case-specific”). In determining whether a petitioner presented his or her federal claims to the state’s highest court “face-up and squarely,” Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.1988), we consider issues of probability — whether it is more likely than not that a reasonable jurist would recognize the constitutional dimensions of the petitioner’s claims, given the manner in which those claims were presented. See Nadworny, 872 F.2d at 1101. To resolve the question before us, then, we must direct our attention primarily to Barresi’s ALOFAR. See Adelson 131 F.3d at 263 (“[T]he decisive pleading [under Massachusetts practice] is the application for further appellate review, and we must determine whether the petitioner fairly presented the federal claim to the SJC within ‘the four corners’ of that application.”) (quoting Mele v. Fitchburg Dist. Court, 850 F.2d 817, 823 (1st Cir.1988)). Nevertheless, while our inquiry must focus on the “four corners” of the ALOFAR, we have never held that appellate review is confined to an examination of that pleading in isolation. Rather, we have acknowledged that, under certain circumstances, the pleadings and filings submitted by a habeas petitioner to lower state courts (e.g., a motion for new trial or a brief submitted to an intermediate appellate court) provide “a backdrop against which his later filings [must]" }, { "docid": "21738453", "title": "", "text": "his medical expert, violated his right to confront adverse witnesses, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. While it did not directly address Barresi’s federal constitutional claims, the Commonwealth’s intermediate appellate court ruled that the trial judge neither abused his discretion nor committed an error of law in excluding the challenged evidence. Barresi, 705 N.E.2d at 641. Accordingly, Barresi’s convictions were affirmed. Barresi filed a timely ALOFAR with the SJC, the essential thrust of which was that the trial court erred in its interpretation and application of the Massachusetts Rape Shield Law. Barresi did, however, at least allude to the federal constitutional issues he had pressed more forcefully before the intermediate appellate court. The SJC denied Barresi’s ALOFAR without opinion. Barresi then filed a petition for federal habeas corpus relief, pursuant to 28 U.S.C. § 2254, reiterating his claims that the trial court’s evidentiary rulings violated his rights under the Sixth and Fourteenth Amendments. The Commonwealth moved to dismiss the petition, arguing that with regard to his federal constitutional claims, Barresi had failed to exhaust the remedies available to him in state court. The district court agreed, holding that because Barresi’s ALOFAR did not fairly present his constitutional claims to the SJC, those claims were not exhausted. Therefore, Barresi’s habeas petition was dismissed. We subsequently granted Barresi’s application for a certificate of appealability, see generally Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), and this appeal followed. II. The merits of Barresi’s habeas petition are not at issue, so we make no comment in that regard. The sole question presented here is a procedural one: whether the federal constitutional claims Barresi advances in his habeas petition were fairly and recognizably presented in his appeal to the SJC. That is, we must decide whether Barresi exhausted available state remedies as to those issues. Our review is de novo. See Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir.1997). Barring certain exceptional circumstances not present here, a habeas petitioner in state custody may not advance his or her constitutional claims in" }, { "docid": "21974623", "title": "", "text": "447 U.S. 343, 345-47, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980))). Furthermore, Goodrich’s ALOFAR did explicitly frame both his “Statement of Points with Respect to Which Further Appellate Review is Sought” and his “Statement of Argument” in terms of a violation of “Amendment XIV,” by which he appears to have meant the Fourteenth Amendment to the United States Constitution (and also in terms of a violation of a state constitutional provision). Taking into account the background of Goodrich’s more explicit federal argument before the state Appeals Court, the absence of any sign that Goodrich abandoned his federal claim in the ALOFAR, and the nature of the argument in the ALOFAR (which is strikingly similar to, and indeed largely a verbatim copy of, the Appeals Court brief), see Barresi, 296 F.3d at 52 n. 1 (“If it cannot be said that the petitioner abandoned his or her federal claims on appeal to the SJC, federal exhaustion review includes consideration of the petitioner’s lower court filings as a ‘backdrop’ to his or her ALOFAR.”), we think it likely “a reasonable jurist would recognize the [federal] constitutional dimensions of the petitioner’s claims.” Id. at 52. The federal due process claims having been exhausted, the next question is which standard of review to apply. Under AEDPA, federal courts may not grant habeas relief “ ‘with respect to any claim that was adjudicated on the merits in State court proceedings’ unless the state court decision” meets either of two criteria: “1) [it] ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States’ or 2)[it] ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” McCambridge v. Hall, 303 F.3d 24, 34 (1st Cir.2002) (en banc) (citations omitted) (quoting 28 U.S.C. § 2254(d)). In this circuit, if the state court has not adjudicated the federal claim on the merits, then we do not ask whether the decision involved an unreasonable application of federal law, but instead review the constitutional question de novo." }, { "docid": "23561413", "title": "", "text": "state remedies as the statute governing habeas petitions, requires. 28 U.S.C. § 2254(b)(1). Although conceding that Fortini’s state court briefs contained “isolated references” to his federal constitutional rights, the district court said that they did not include a “developed argument elaborating any particular claim.” The district court observed that the state appeals court had not addressed Fortini’s constitutional claim, suggesting that it had been unaware that such a claim was being pressed. Fortini now appeals to this court. He argues that the district court erred in finding that he did not properly present his constitutional claim in state court and, in addition, says that excluding the basketball court episode denied him due process under Chambers and had a likely effect on the jury’s verdict. The Commonwealth, while partly addressing the merits of For-tini’s claim, rests primarily on the district court’s waiver argument and on the strict standards for habeas now applicable under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996). See 28 U.S.C. § 2254(d)(1) (Supp. II 1996). 1. The threshold question in this case is whether Fortini exhausted his state remedies. The Commonwealth says that Fortini “did little if anything to properly alert the Commonwealth’s courts that he was asserting a federal constitutional claim” and thus he is not entitled to habeas review. The district court agreed, finding that while Fortini had argued that the exclusion of the basketball court incident implicated state evidence law issues, he had not adequately raised the constitutional claim. We review de novo the district court’s dismissal on this ground. Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir.1997). Exhaustion requires that a petitioner have “fairly presented to the state courts” his constitutional claim. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). This requires that the issue be presented “in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question,” Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir.1994), cert. denied, 513 U.S. 1129, 115 S.Ct. 940, 130" }, { "docid": "9950334", "title": "", "text": "and leave to appeal to the New York Court of Appeals was denied. Traditionally, the failure to raise a constitutional claim on direct appeal to the state courts bars federal court review of that issue. The federal court simply remands such petitions to the state courts for exhaustion of all available state remedies. See Rose v. Lundy, 455 U.S. 509, 516-518, 102 S.Ct. 1198, 1202-03, 71 L.Ed.2d 379 (U.S. 1982). However, in this case, the petitioner raised the double jeopardy claim in his state habeas corpus petition. At each level of appellate review, the New York courts considered and rejected this double jeopardy claim. Consequently, his constitutionally-based collateral attack sufficed to exhaust state remedies. See Ex Parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572 (1944) (per curiam); Sweet v. Cupp, 640 F.2d 233, 235-36 (9th Cir.1981); see also 28 U.S.C. § 2254(b), (c) (1976). . The petitioner applied pursuant to 28 U.S.C. § 2254 (1976) for a writ of habeas corpus from the United States District Court for the Eastern District of New York, Bramwell, J. He raised various objections to the conduct of his second trial, but failed to raise the double jeopardy claim urged in the instant proceeding. The court denied his petition. Paul v. LeFevre, No. 78 C 2152 (E.D.N.Y. Feb. 27, 1980), reprinted in J.App. at 28-34. . The petitioner did not appeal the district court’s denial of his petition with respect to the conviction for attempted murder. . When the petitioner learned that the state intended to retry him for felony murder, he could have presented this double jeopardy claim at that time. If the court rejected that claim, he could have initiated an article 78 proceeding in the Appellate Division. Under the New York Civil Practice Law § 7801 (McKinney 1981), the article 78 proceeding provides immediate appellate review of an otherwise nonappealable order. See Wiley v. Altman, 52 N.Y.2d 410, 412-13 & n. 2, 420 N.E.2d 371, 372 & n. 2, 438 N.Y.S.2d 490, 491 & n. 2 (1981); Abraham v. Justices Of the New York Supreme Court," }, { "docid": "5807591", "title": "", "text": "Clause because he was unable to cross-examine Pedoto (who was deceased at the time of trial) about the paper. The district court did not reach the merits of this claim but, rather, ruled that the petitioner had not exhausted it in state court and, thus, could not raise it in a federal habeas proceeding. We review de novo the district court’s determination that the petitioner’s claim was unexhausted. Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir.1997). “The exhaustion doctrine honors hallowed principles of federal-state comity. It serves to ensure that the state courts are sufficiently apprised of a federal claim to have a meaningful opportunity to address that claim.” Rashad v. Walsh, 300 F.3d 27, 41 (1st Cir.2002). Consistent with this doctrine, a state prisoner must exhaust available state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In order to exhaust a federal claim, a petitioner must present that claim “fairly and recognizably” to the state courts. Adelson, 131 F.3d at 262. In other words, he must have tendered the claim “in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.” Scarpa, 38 F.3d at 6. In Massachusetts, the SJC is the highest court in the state system. Thus, exhaustion requires presentation of the claim in question to that court. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). In most cases — the exceptions are not implicated here — the SJC controls its own docket and may exercise discretion as to whether or not to grant reviews. Even if the SJC declines to grant review, however, the petitioner must have fairly presented the federal claim within the four corners of his ALO-FAR. Clements v. Maloney, 485 F.3d 158, 162 (1st Cir.2007); Adelson, 131 F.3d at 263. A petitioner will satisfy the fair presentment requirement if he does any of the following in his ALOFAR: (i) cites a provision of the federal Constitution upon" }, { "docid": "5807594", "title": "", "text": "as federal in nature, did not rely on any federal case law, and did not argue the point in federal constitutional terms. By the same token, the state-law precedents cited in that portion of the ALOFAR did not themselves rely on federal law. Under these circumstances, our decision in Clements, 485 F.3d at 163-67, is controlling. Accordingly, we hold that the petitioner did not present his Sixth Amendment claim vis-á-vis the scrap of paper fairly and recognizably to the SJC. In a vain attempt to parry this thrust, the petitioner invokes our decision in Barresi v. Maloney, 296 F.3d 48 (1st Cir.2002). There, we authorized a federal habeas court to look not only to the ALOFAR but also to other submissions that were before inferior state courts in order to determine if the petitioner had fairly presented a particular federal claim. Id. at 52-53. Nevertheless, we have limited the application of the Barresi “background” approach to cases in which the ALOFAR is ambiguous as to the nature of the particular claim. See Clements, 485 F.3d at 163. The petitioner does not contest the salience of this limitation. Instead, he argues that his ALOFAR is ambiguous and, on that basis, urges us to look to the brief that he filed before the MAC, which asserted a barebones Sixth Amendment violation with regard to the scrap of paper. Assuming, without deciding, that Barresi is still good law, that case’s “background” approach has no bearing here. Unlike in Barresi, the petitioner’s ALOFAR is nose-on-the-face plain and not at all ambiguous. The petitioner explicitly raised other federal claims in his ALOFAR. In view of this dichotomy, we cannot overlook his deliberate omission of any hint of a federal claim in connection with the scrap of paper. As in Clements, that claim is “unmistakably couched only in state law terms.” Id. at 165. In fairness to the SJC, we must treat it as such. The short of it is that the petitioner did not duly present a federal claim in regard to the scrap of paper in his ALOFAR. Consequently, the federal claim that he" }, { "docid": "5199236", "title": "", "text": "re-sentencing and based on alleged violations of due process and the Double Jeopardy Clause. The district court, in dismissing the due process claim, held that when Prendergast raised it at the Colorado Court of Appeals, he did not present the claim as having a federal constitutional dimension. As to the double-jeopardy claim, the district court concluded Prendergast had not exhausted state court remedies on the claim because it was not raised on direct appeal. In this appeal, Prendergast disputes the district court’s analysis on both claims. For a federal court to consider a federal constitutional claim in an application for habeas, the claim must be “fairly presented to the state courts” in order to give state courts the “opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (internal quotations omitted). Indeed, “[i]f state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A petitioner need not invoke “talismanic language” or cite “book and verse on the federal constitution.” Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.1989) (internal quotations omitted); see also Connor, 404 U.S. at 278, 92 S.Ct. 509. Rather, the crucial inquiry is whether the “substance” of the petitioner’s claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim. Connor, 404 U.S. at 278, 92 S.Ct. 509; Nichols, 867 F.2d at 1252. Prendergast did not satisfy this standard with regard to either of his attacks on resentencing. At the Colorado Court of Appeals, Prendergast only argued that the trial court abused its discretion in considering certain evidence at his resentencing hearing. We see nothing in Pren dergast’s briefing there to alert the state court about a federal constitutional claim. While Prendergast’s reply brief suggests that the" }, { "docid": "21738454", "title": "", "text": "claims, Barresi had failed to exhaust the remedies available to him in state court. The district court agreed, holding that because Barresi’s ALOFAR did not fairly present his constitutional claims to the SJC, those claims were not exhausted. Therefore, Barresi’s habeas petition was dismissed. We subsequently granted Barresi’s application for a certificate of appealability, see generally Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), and this appeal followed. II. The merits of Barresi’s habeas petition are not at issue, so we make no comment in that regard. The sole question presented here is a procedural one: whether the federal constitutional claims Barresi advances in his habeas petition were fairly and recognizably presented in his appeal to the SJC. That is, we must decide whether Barresi exhausted available state remedies as to those issues. Our review is de novo. See Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir.1997). Barring certain exceptional circumstances not present here, a habeas petitioner in state custody may not advance his or her constitutional claims in a federal forum unless and until the substance of those claims has been fairly presented to the state’s highest court. This exhaustion requirement, codified at 28 U.S.C. §§ 2254(b) and (c), embodies principles of federal-state comity and is designed to provide state courts with an initial “opportunity to pass upon and correct alleged violations of [their] prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation and internal quotation marks omitted). The petitioner bears the heavy burden of demonstrating satisfaction of the exhaustion requirement. See Adelson, 131 F.3d at 262; Nadworny v. Fair, 872 F.2d 1093, 1098 (1st Cir.1989). To carry that burden, the petitioner must show that “he tendered his federal claim [to the state’s highest court] in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.” Casella v. Clemons, 207 F.3d 18, 20 (1st Cir.2000) (citations and internal quotation marks omitted). The Supreme Court has made it clear that a federal" } ]

[ { "docid": "19262785", "title": "", "text": "petition.” In re Pitman, 843 F.2d 235, 238 (6th Cir.1988) (quoting 11 U.S.C. § 547(b)). The provision is designed “to accomplish proportionate distribution of the debtor’s assets among its creditors, and therefore to prevent a transfer to one creditor that would diminish the estate of the debtor that otherwise would be available for distribution to all.” In re Nucorp Energy, Inc., 902 F.2d 729, 733 (9th Cir.1990). Section 547(c)(1) establishes an exception to section 547(b) avoidance, providing: (c) The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. (Emphasis added.) “New value,” as used in this subsection, means: money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. 11 U.S.C. § 547(a)(2) (1993). The contemporaneous exchange exception under section 547(c)(1), thus, has three elements: (1) both the debtor and creditor must intend the transfer to be a contemporaneous exchange; (2) the exchange must, in fact, be contemporaneous; and (3) the exchange must be for new value. In re Gateway Pac. Corp., 153 F.3d 915, 918 (8th Cir.1998). The burden is on the creditor, Leisure Vans, to demonstrate the elements of this exception. 11 U.S.C. § 547(g) (1993). The purpose of the contemporaneous exchange exception is to “encourage creditors to continue doing business with troubled debtors who may then be able to avoid bankruptcy altogether.” In re Jones Truck Lines, Inc., 130 F.3d 323, 326 (8th Cir.1997). In addition, this exception recognizes that the debtor’s payment does not adversely affect other creditors because the payment is offset by the debtor’s receipt of new value. The district court relied on" } ]

[ { "docid": "4384395", "title": "", "text": "does not diminish the estate if the estate receives “new value” on account of and equal to the amount of the transfer. Id. at 548; see also In re Fuel Oil Supply & Terminating, 837 F.2d at 228 (“This defense ‘is grounded in the principle that the transfer of new value to the debtor will offset the payments, and the debtor’s estate will not be depleted to the detriment of other creditors.’ ” (quoting In re Auto-Train Corp., 49 B.R. 605, 612 (Bankr.D.D.C.1985))); Thomas J. Palazzolo, Note, New Value and Preference Avoidance in Bankruptcy, Wash. U.L.Q. 875, 881 (1991) (“The exception’s apparent rationale is that the transfer of new value offsets the preference. Thus, the debtor’s estate is not depleted to the other creditors’ detriment.”). To establish the new value defense, the creditor essentially must prove three elements. See 11 U.S.C. § 547(g) (noting that the creditor bears the burden of proving the non-avoidability of a transfer under § 547(c)). First, the creditor must demonstrate that it is a “creditor to or for whose benefit such transfer was made.” Id. § 547(c)(1)(A). Second, the creditor must show that it and the debtor had the requisite intent to make a contemporaneous exchange for new value. Third, the exchange must be in fact contemporaneous and for new value. See In re Barefoot, 952 F.2d 795, 800 (4th Cir.1991) (“In order for a creditor to successfully make out the [new value] defense, the creditor must prove both that the transfer was intended by the debtor and the creditor to be a contemporaneous exchange for new value and that in fact the transfer was a substantially contemporaneous exchange.”). In the instant case, the first element is satisfied as Hazmed is a creditor for whose benefit the transfers at issue were made. The second element regarding intent is typically the most crucial element in a new value defense. See, e.g., In re Presidential Airways, Inc., 228 B.R. 594, 599 (Bankr.E.D.Va.1999) (“[T]he critical factor is whether the parties intended a contemporaneous exchange.”). In Lubman v. C.A. Guard Masonry Contractors, Inc. (In re GEM Constr. Corp.), No." }, { "docid": "13182379", "title": "", "text": "timing of payments during the preference period. The payments were accelerated by as much as 87 percent and were up to 467 percent larger than the historical averages. Therefore, the payments were not consistent with the parties’ prior course of dealings. Based upon the foregoing, the court finds that the Defendants have not established that the debts and corresponding payments were made in the ordinary course of business between TDC and BMC and, further, BMC has established that they were, in fact, not made in the ordinary course of business. 2. Subsequent New Value Defense Having failed to prove that the payments fall within the ambit of § 547(c)(2), the Defendants must rely on the “new value” defenses of §§ 547(c)(1) or (c)(4). In their argument, the Defendants combine §§ 547(c)(1) and (c)(4). (Def.’s Post-Trial Mem. of Law 24.) To prevail on a § 547(c)(1) defense, the Defendants have to prove: “(i) the transfer [was] for new value given to the debtor; (ii) the transfer [was] intended to be a contemporaneous exchange; and (iii) the transfer [was] in fact a substantially contemporaneous exchange.” See Buckwald Capital Advisors LLC v. Metl-Span I., Ltd. (In re Pameco Corp.), 356 B.R. 327, 338 (Bankr.S.D.N.Y.2006) (quoting Official Comm. of Unsecured Creditors of 360networks (USA) Inc. v. U.S. Relocation Servs., Inc. (In re 360networks (USA) Inc.), 338 B.R. 194, 204 (Bankr.S.D.N.Y.2005)). Because § 547(c)(1) is framed in the conjunctive, the Defendants have to prove all three elements. See 11 U.S.C. § 547(c)(1)(A)-(B). The Defendants failed to prove the second and third elements. No testimony or evidence in the record establishes that BMC intended the challenged payments to be contemporaneous exchanges for new value or that they were in fact contemporaneous exchanges for new value. The court therefore turns to whether the transfers were for subsequent new value under § 547(c)(4). “The purpose of the new value exception, like that of the other § 547(c) exceptions, is to encourage creditors to continue to deal with troubled debtors without fear that they will have to disgorge payments received for value given.” Hall-Mark Elecs. Corp. v. Sims (In" }, { "docid": "18758321", "title": "", "text": "280, 281-82 (Bankr.M.D.Tenn.1982). See also Steel Structures, Inc. v. Star Manufacturing Company, 466 F.2d 207, 217 (6th Cir.1972). In the present case, the court must also consider whether the defendant is entitled to retain the funds in question under the contemporaneous exchange exception pursuant to 11 U.S.C. § 547(c)(1). The defendant must bear the burden of proof in establishing the elements of a § 547(c) exception. Waldschmidt v. Miracle Motors (In re Haynes), 28 B.R. 136 (Bankr.M.D.Tenn.1983). Based on the stipulations and the pleadings of the parties, it is clear that the five essential elements of § 547(b) have been established. First, this court has determined that the debtor neither held the funds in question in a bailment relationship nor was entrusted with the funds as an agent; therefore, the defendant received the funds as a creditor. Second, the parties have stipulated that the defendant received the funds in question as a repayment of funds previously forwarded to the debtor. Third, the transfer took place within 90 days of the date of the filing of the bankruptcy petition. Fourth, the debt- or is presumed to have been insolvent pursuant to 11 U.S.C. § 547(f) (West 1979). Middle Tennessee Marine, Inc. v. I.T.T. Diversified Credit Corp., No. 380-02844, Adv.Proc. No. 380-0650 (Bankr.M.D.Tenn., May 1, 1981); McLemore v. Carson, Ltd. (In re Sealy), 34 B.R. 947, 952 n. 5 (Bankr.M.D.Tenn.1983); Coken v. Kern (In re Kennesaw Mint, Inc.), 32 B.R. 799, 803 (Bankr.N.D.Ga.1983). Fifth, the defendant, an unsecured creditor, received 100% payment of its debt as a result of the transfer in question. Had this transfer not occurred, the defendant would have received significantly less on its unsecured claim under this Chapter 7 liquidation. III. The defendant argues that the transfer is excepted from avoidance pursuant to 11 U.S.C. § 547(c)(1) (West 1979). In order to establish a § 547(c)(1) exception, the defendant must prove not only that a substantially contemporaneous exchange for new value occurred but also that the debtor and creditor intended the transaction to be a contemporaneous exchange for new value. Ray v. Security Mutual Finance Corporation (In re" }, { "docid": "4391164", "title": "", "text": "For example, The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. 11 U.S.C. § 547(c)(1). These types of transfers are protected by the Code “because, unlike payments to unsecured creditors, they do not affect the equality of distribution of estate assets.” O’Rourke v. Coral Constr., Inc. (In re E.R. Fegert, Inc.), 88 B.R. 258, 259 (9th Cir. BAP 1988) (“Fegert I”) aff'd Fegert II (citation omitted). The § 547(c)(1) defense “is grounded in the principle that the transfer of new value to the debtor will offset the payments, and the debtor’s estate will not be depleted to the detriment of other creditors.” Lubman v. C.A. Guard Masonry Contractor, Inc. (In re Gem Constr. Corp. of Virginia), 262 B.R. 638, 645 (Bankr.E.D.Va.2000) (citations omitted). Thus, for § 547(c)(1) to apply, the value given for the transfer must actually enhance the worth of debtor’s estate so as to offset the reduction in the estate caused by the transfer. Id. “To enjoy the benefits of Section 547(c)(1), the creditor must provide new value as defined in Section 547(a)(2) in contemporaneous exchange for the debt- or’s payments.” Fegert I, 88 B.R. at 259. “[N]ew value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. 11 U.S.C. § 547(a)(2). Before new value can be determined, a court must measure “the value given to the debtor in determining the extent to which the trustee may void a contemporaneous exchange.” Sulmeyer v. Suzuki (In re Grand Chevrolet, Inc.), 25 F.3d 728, 733 (9th Cir.1994) (quoting Milchem, Inc. v. Fredman (In re Nucorp" }, { "docid": "18758322", "title": "", "text": "the bankruptcy petition. Fourth, the debt- or is presumed to have been insolvent pursuant to 11 U.S.C. § 547(f) (West 1979). Middle Tennessee Marine, Inc. v. I.T.T. Diversified Credit Corp., No. 380-02844, Adv.Proc. No. 380-0650 (Bankr.M.D.Tenn., May 1, 1981); McLemore v. Carson, Ltd. (In re Sealy), 34 B.R. 947, 952 n. 5 (Bankr.M.D.Tenn.1983); Coken v. Kern (In re Kennesaw Mint, Inc.), 32 B.R. 799, 803 (Bankr.N.D.Ga.1983). Fifth, the defendant, an unsecured creditor, received 100% payment of its debt as a result of the transfer in question. Had this transfer not occurred, the defendant would have received significantly less on its unsecured claim under this Chapter 7 liquidation. III. The defendant argues that the transfer is excepted from avoidance pursuant to 11 U.S.C. § 547(c)(1) (West 1979). In order to establish a § 547(c)(1) exception, the defendant must prove not only that a substantially contemporaneous exchange for new value occurred but also that the debtor and creditor intended the transaction to be a contemporaneous exchange for new value. Ray v. Security Mutual Finance Corporation (In re Arnett), 731 F.2d 358 (6th Cir.1984); Ray v. Gulf Oil Products (In re Blanton Smith Corporation), 37 B.R. 303, 307 n. 6 (Bankr.M.D.Tenn.1984); Eckles v. Pan American Marketing (In re Balducci Oil Company, Inc.), 33 B.R. 843, 846 (Bankr.D.Colo.1983); Ford Motor Credit Company v. Ken Gardner Ford Sales, Inc., 23 B.R. 743, 746-747 (E.D.Tenn.1982). Based on the stipulations submitted by the parties, the court is convinced that no basis exists for a § 547(c)(1) defense. Based upon fraudulent invoices, the defendant transferred to the debtor $14,-962.42. Four days later, the debtor admitted that it had deceived the defendant and accordingly, paid the defendant $14,962.42. The transaction in question was clearly a situation in which the debtor had a change of heart and paid the defendant for funds it had wrongfully obtained. A contemporaneous exchange for new value was not intended by the parties and indeed, never occurred. The court will accordingly enter an order GRANTING summary judgment to the trustee and requiring the defendant to turnover to the trustee preferential transfers in the amount of" }, { "docid": "4384396", "title": "", "text": "such transfer was made.” Id. § 547(c)(1)(A). Second, the creditor must show that it and the debtor had the requisite intent to make a contemporaneous exchange for new value. Third, the exchange must be in fact contemporaneous and for new value. See In re Barefoot, 952 F.2d 795, 800 (4th Cir.1991) (“In order for a creditor to successfully make out the [new value] defense, the creditor must prove both that the transfer was intended by the debtor and the creditor to be a contemporaneous exchange for new value and that in fact the transfer was a substantially contemporaneous exchange.”). In the instant case, the first element is satisfied as Hazmed is a creditor for whose benefit the transfers at issue were made. The second element regarding intent is typically the most crucial element in a new value defense. See, e.g., In re Presidential Airways, Inc., 228 B.R. 594, 599 (Bankr.E.D.Va.1999) (“[T]he critical factor is whether the parties intended a contemporaneous exchange.”). In Lubman v. C.A. Guard Masonry Contractors, Inc. (In re GEM Constr. Corp.), No. 98-33110, Adv. 99-3047, 2000 WL 33321298 (Bankr. E.D.Va. Jan. 5, 2000) (unpublished), the court denied summary judgment on the new value defense in part because the parties disputed whether the transaction was contemporaneous. Id. at *4. Intent may be gleaned from, inter alia, “the agreement or the course of dealings between parties .... ” Everlock Fastening Sys., Inc. v. Health Alliance Plan (In re Everlock Fastening Sys., Inc.), 171 B.R. 251, 255 (Bankr.E.D.Mich.1994). The requisite intent is evident from the Subcontract and the Escrow Agreement. These documents contemplate Hazmed will perform services and supply goods to perform those tasks under the Corps Contract as delegated to Hazmed by Holmes. In exchange for these goods and services, Hazmed is to be paid by the payment of the Corps Contract proceeds into the escrow established at Suntrust by the Escrow Agreement. Suntrust in turn would pay Hazmed the actual amount owed for its goods and services from the escrowed monies. The final element is the determination of whether the exchange was contemporaneous and for new value. Section" }, { "docid": "12625657", "title": "", "text": "attachment of the security interest. Id. at *3-4. Accordingly, LCNB’s argument fails on this basis alone. Notwithstanding, LCNB’s argument loses sight of the forest for the trees. The timeliness of perfection is relevant to the § 547(b) analysis only as far as the date of the transfer is determined. The LCNB argument concludes with the same September 10, 1999 transfer date asserted by the Trustee. Accordingly, the transfer is still: (1) on account of an antecedent debt incurred no later than August 8, 1999; (2) within ninety days of the filing of the bankruptcy petition; and (3) made while the Knees are presumed to have been insolvent. LCNB does not suggest that its argument somehow delays the date on which the debt was incurred to the date of the transfer. Accordingly, this argument must be rejected. The final argument advanced by LCNB takes the form of an affirmative defense. LCNB argues that its lien cannot be avoided by the Trustee because the transfer in question constitutes a contemporaneous exchange under the authority of 11 U.S.C. 547(c)(1). “The contemporaneous exchange exception under section 547(c)(1) ... has three elements: (1) both the debtor and creditor must intend the transfer to be a contemporaneous exchange; (2) the exchange must, in fact, be contemporaneous; and (3) the exchange must be for new value.” Stevenson v. Leisure Guide of Am., Inc. (Shelton Harrison Chevrolet, Inc.), 202 F.3d 834, 837 (6th Cir.2000). LCNB’s argument falls well short with respect to the second element of this defense. The Sixth Circuit takes the position that the transfer of a security interest in a motor vehicle is not contemporaneous in fact where the lien is not perfected within ten days of attachment of the security interest. See Ray v. Security Mut. Fin. Corp. (In re Arnett), 731 F.2d 358 (6th Cir.1984). In this proceeding, the security interest attached no later than August 8, 1999, and the same was not perfected until September 10, 1999. Accordingly, the contemporaneous exchange defense is inapplicable. Conclusion For the foregoing reasons, the Trustee’s Motion for Summary Judgment (Doc. 23) filed on June 7, 2000," }, { "docid": "7656548", "title": "", "text": "In re Bullion Reserve of North America, 922 F.2d at 549. In Excello Press, Inc. v. Bowers, Inc. (In re Excello), 104 B.R. 924 (Bankr.N.D.Ill.1989), aff'd in part rev’d on other grounds, 120 B.R. 938 (N.D.Ill.1990), rev’d on other grounds, 967 F.2d 1109 (7th Cir.1992), it appears from the District Court opinion that the Bankruptcy Court had applied the Bonded Financial test and the conduit defense where “a portion” of the payments to a broker for medical insurance reimbursed a broker for insurance that had already been purchased. But no case has been found that has applied the “conduit” defense to transactions where the alleged “conduit” received repayment of funds that the conduit had advanced on behalf of and on the credit of the debtor a substantial period of time earlier. USRS has failed to identify any funds it passed directly on to employees as a “conduit,” except for the funds that were prepaid on May 20, 2001 and are not demanded in the complaint. Accordingly, the conduit defense is not available to USRS with respect to the Payments it received from the Debtors reimbursing it for funds already expended on behalf of the employees. II. Contemporaneous Exchange for New Value Defense Section 547(c)(1) of the Bankruptcy Code provides that: The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. Three elements are necessary: (i) the transfer must be for new value given to the debtor; (ii) the transfer must be intended to be a contemporaneous exchange; and (iii) the transfer must be in fact a substantially contemporaneous exchange. 11 U.S.C. § 547(c)(1); see Stevenson v. Leisure Guide of Am., Inc. (In re Shelton Harrison), 202 F.3d 834, 837 (6th Cir.2000); Tyler v. Swiss Am. Sec., Inc. (In re Lewellyn & Co., Inc.), 929 F.2d 424, 429 (8th Cir.1991); Computer Personalities Sys. v. Aspect Computer" }, { "docid": "17273886", "title": "", "text": "district court agreed, that although FMCC did not comply with § 547(c)(3), its security interest is protected under subsection (c)(1), which provides that the trustee may not avoid a transfer: (1) to the extent that such transfer was — (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. This subsection has come to be referred to as the “contemporaneous exchange” exception. A number of the bankruptcy courts and two circuit courts recently have strug gled to define the relationship between this section and the more specific enabling loan exception in §\" 547(c)(3). Several bankruptcy courts have held that a holder of an interest securing an enabling loan may avail himself of § 547(c)(1) if he did not perfect within the ten day period required under subsection (c)(3). See In re Martella, 22 B.R. 649 (D.Colo.1982); In re Burnette, 14 B.R. 795 (Bkrtcy.E.D.Tenn.1981); In re Arnett, 13 B.R. 267 (Bkrtcy.E.D. Tenn.1981), aff'd, 17 B.R. 912 (E.D.Tenn.1982), rev’d, 731 F.2d 358 (6th Cir.1984). One court explained the relationship between two subsections as follows: Though the contemporaneous exchange exception was not meant to apply to this situation, it is broad enough to apply. It should not be held inapplicable on the ground that it cannot overlap with the enabling loan exception. The enabling loan exception can be viewed as defining one kind of “contemporaneous exchange”, in the broad sense of those words. The enabling loan exception requires proof of specific facts that should be easily proved or disproved, whereas the contemporaneous exchange exception is vague as to what facts will satisfy it. In re Burnette, 14 B.R. at 803. Under this approach, a security interest automatically is protected under § 547(c)(3) if filed within ten days of the transfer, but an untimely perfection may still be protected following a factual inquiry into the reason for the delay, the intent of the parties and the contemporaneous nature of the exchange. See In re Arnett, 17 B.R." }, { "docid": "4769103", "title": "", "text": "are crucial to the establishment of the contemporaneous exchange exception: (1) The parties must intend that the exchange be substantially contemporaneous; (2) the exchange must in fact be substantially contemporaneous.” Ray v. Security Mutual Fin. Corp. (In re Arnett), 731 F.2d 358, 362 (6th Cir.1984). Intent alone is not sufficient — the exchange must “in fact” be contemporaneous in that there must be “temporal proximity between the [new value] and the [debtor’s] trans-fer_” Id. at 364. “New value” can be in the form of a release of rights, but the § 547(c)(1) defense is available only where the value of the rights released is equivalent to the full amount of the transfer by the debtor. See Lowrey v. U.P.G., Inc. (In re Robinson Bros. Drilling, Inc.), 877 F.2d 32, 33 (10th Cir.1989) explaining Kenan v. Fort Worth Pipe Co. (In re Rodman), 792 F.2d 125 (10th Cir.1986) and citing Jet Florida, Inc. v. American Airlines, Inc. (In re Jet Florida, Inc.), 861 F.2d 1555, 1559 (11th Cir.1988). The party asserting the § 547(c)(1) defense must prove the specific measure of the new value given to the debtor in “money or money's worth in goods, services, or new credit_” Electronic Metal Prod., Inc. v. Bittman (In re Electronic Metal Prod., Inc.), 916 F.2d 1502, 1506 (10th Cir.1990); Jet Florida, 861 F.2d at 1559; In re Robinson Bros. Drilling, Inc., 877 F.2d at 34. The new value must be value to the estate — in the absence of an enhancement of the estate, the defense fails. Electronic Metal Prod., 916 F.2d at 1506. TNB failed to prove the value of the surrender of its right to dishonor ZBA checks; the trustee demonstrated that if any such right was surrendered by TNB, it was valueless to the estate. More than 80% of the items presented on the ZBA account at TNB were kited checks written by Montgomery against nonexistent funds at TNB for deposit to Montgomery controlled accounts at other banks which were then used to kite checks for deposit back to the Main Funding Account at TNB. At any moment during the" }, { "docid": "623359", "title": "", "text": "the extent that such transfer was ... intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and ... in fact a substantially contemporaneous exchange.” 11 U.S.C. § 547(c)(1). The Trustee in this case does not dispute the fact that the Defendant provided the Debtor with new value and does not question that the parties intended the exchange to be contemporaneous. At issue here is whether the exchange was “in fact a substantially contemporaneous exchange.” As an initial matter, the failure to perfect a non-purchase money security interest within the § 547(e)(2) grace-period does not foreclose a finding that, under § 547(c)(1), the transfer of the security interest and the provision of the new value were in fact substantially contemporaneous. See In re Dorholt, Inc., 224 F.3d 871 (8th Cir.2000); In re Marino, 193 B.R. 907, 912-16 (9th Cir. BAP 1996), aff'd, 117 F.3d 1425 (9th Cir.1997); Pine Top Ins. Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 969 F.2d 321, 328-29 (7th Cir.1992); Telecash Indus. Inc. v. Universal Assets (In re Telecash Indus., Inc.), 104 B.R. 401, 404 (Bankr.D.Utah 1989). Section 547(e)(2) addresses when a transfer is deemed to have occurred — not with whether an exchange is substantially contemporaneous. Although some courts have adopted § 547(e)(2) as a “bright line” test for analyzing the substantial contemporaneity defense, see Ray v. Security Mut. Fin. Corp. (In re Arnett), 731 F.2d 358 (6th Cir.1984), this Court, like many other courts, rejects a rigid approach to § 547(c)(1). See, e.g., In re Kerst, 347 B.R. 418, 424 fn. 10 (Bankr.D.Colo.2006) (collecting cases). Congress’ use of the term “substantially contemporaneous” in § 547(c)(1) suggests that “contemporaneity is a flexible concept which requires a case-by-ease inquiry into all relevant circumstances (e.g., length of delay, reason for delay, nature of the transaction, intentions of the parties, possible risk of fraud) surrounding the allegedly preferential transfer.” In re Dorholt, 224 F.3d at 874; In re Marino, 193 B.R. at 914. “Congress knew how to adopt" }, { "docid": "10719695", "title": "", "text": "avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange[.] 11 U.S.C. § 547(c)(1) (West 2013). The exception for transfers made as a contemporaneous exchange for new value has three elements: “ ‘(1) both debtor and creditor must intend the transfer to be a contemporaneous exchange; (2) the exchange must, in fact, be contemporaneous; and (3) the exchange must be for new value.’ ” Silagy v. Jay’s Auto Sales, Inc. (In re Jackson), Adv. No. 06-6082, 2006 WL 3064087, *4-5, 2006 Bankr.LEXIS 2955, *13-14 (Bankr.N.D.Ohio Oct. 23, 2006) (quoting Field v. Lebanon Citizens Nat’l Bank (In re Knee), 254 B.R. 710, 714 (Bankr.S.D.Ohio 2000)). The party asserting that a transfer is not avoidable under § 547(c) has the burden of establishing the defense by a preponderance of the evidence. See 11 U.S.C. § 547(g); see also Nathan v. Am. Med. Sec., Inc. (In re Advanced Sys. Int’l), 234 Fed.Appx. 398, 401 (6th Cir.2007) (applying § 547(g) to § 547(c)(2)). Agree Auto may not avail itself of the contemporaneous exchange defense because it fails to establish at least two of the requisite elements for a contemporaneous exchange for new value. First, there is no evidence to suggest that the parties intended a contemporaneous exchange. In determining the parties’ intent, a court may consider the parties’ agreements, testimony and course of dealing. Ganton Techs., LLC v. Chemtool, Inc. (In re Intermet Corp.), 372 B.R. 358, 365-66 (Bankr.E.D.Mich.2007). The plain language of the Purchase Agreement and Installment Contract does not establish the parties’ intent to effectuate a contemporaneous exchange for new value. Rather, both documents list the purchase price for the New Vehicle as $6,931.34, which does not include the balance owed on the Trade-in Vehicle. The Installment Contract further reflects that the Debtor’s down payment was $0 and the Total Net Cash/Trade-in was -$1,323.65— i.e., the difference between the balance owed" }, { "docid": "5723099", "title": "", "text": "recordation of the mortgage were “substantially contemporaneous.” Section 547(c)(1) provides that the trustee may not avoid an otherwise preferential transfer: (1) to the extent that such transfer was — ■ (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debt- or; and (B) in fact a substantially contemporaneous exchange. 11 U.S.C. § 547(c)(1). To establish a defense under § 547(c)(1), the recipient of a transfer must show by a preponderance of the evidence that both parties intended the transfer to be a contemporaneous exchange for new value and that the exchange was, in fact, contemporaneous. Jones Truck Lines v. Central States, Southeast and Southwest Areas Pension Fund (In re Jones Truck Lines, Inc.), 130 F.3d 323, 326-27 (8th Cir.1997); Tyler v. Swiss Am. Securities, Inc. (In re Lewellyn & Co.; Inc.), 929 F.2d 424, 427 (8th Cir.1991); Official Plan Committee v. Expeditors International of Washington, Inc. (In re Gateway Pacific Corp.), 214 B.R. 870, 876 (8th Cir. BAP 1997). The parties concede that they intended the transfer to be a contemporaneous exchange for new value. But, such intention is irrelevant if the exchange is not actually “substantially contemporaneous.” Jones Truck Lines, 130 F.3d at 326-27; Lew- ellyn, 929 F.2d at 428; 1 Epstein et al., supra, § 6-27, at 602-03. The issue before me is whether a transfer that was not perfected within the ten-day time limit of § 547(e)(2) is “substantially contemporaneous” with the new value given to the debtor. In other words, does delay in perfecting beyond ten days render the exchange not only antecedent, but also not “substantially contemporaneous.” Two conflicting lines of authority have developed to answer this question. The first, led by the Sixth Circuit’s opinion in Ray v. Security Mutual Finance Corp. (In re Arnett ), 731 F.2d 358 (6th Cir.1984), holds that an exchange involving a security transaction cannot be substantially contemporaneous unless perfection occurs within the ten-day grace period of § 547(e)(2). The second, led by the Seventh Circuit’s decision in Pine Top" }, { "docid": "12698023", "title": "", "text": "(1982). The terms “debt” and “claim” are coextensive. When a creditor has a claim against the debtor, the debtor owes a debt to the creditor. H.R.Rep. No. 595, 95th Cong. 1st Sess. 310, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6267; S.Rep. No. 989, 95th Cong., 2d Sess. 23, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5809; see also Henderson, 54 B.R. at 476. Bozek accrued a claim against BRNA when he paid for the bullion. Likewise, BRNA incurred a debt to Bozek as of this time. Therefore, the subsequent transfer of bullion was on account of an antecedent debt. 3. Exceptions to § 547(b) Bozek has the burden of proving that the bullion transfer is excepted from the trustee’s avoidance power. In re American Ambulance Service, Inc., 46 B.R. 658, 660 (Bankr.S.D.Cal.1985). Bozek first contends that the transfer cannot be set aside because it was a contemporaneous exchange for new value under 11 U.S. C. § 547(c)(1). In order for a transfer to come within this exception, it actually must be “substantially contemporaneous” with the giving of new value by the creditor. Ray v. Security Mut. Finance Corp. (In re Arnett), 731 F.2d 358, 364 (6th Cir.1984). Bozek has not shown that he received the bullion near the time he delivered funds to BRNA. Bozek last paid BRNA for bullion on June 6, 1983, but he did not receive the bullion until August 22, 1983. The seventy-seven day time span in this case between Bozek’s payments and BRNA’s bullion transfer is too great to be considered “substantially contemporaneous.” Bozek also argues that the transfer cannot be set aside because it was made in the ordinary course of business. See 11 U.S.C. § 547(c)(2) (1982). Recently, this court held that transfers made in a “Ponzi” scheme are not made in the ordinary course of business. Graulty v. Brooks (Matter of Bishop, Baldwin, Rewald, Dillingham & Wong, Inc.), 819 F.2d 214, 216 (9th Cir.1987). In Graulty, we explained that Congress intended the ordinary course of business exception to apply only to transfers by legitimate business enterprises. Id. at 217." }, { "docid": "9557140", "title": "", "text": "which provides more complete information on the chapter 7 distribution. In addition to the elements of a preferential transfer which the trustee must prove, there are also several affirmative defenses which may be raised by the defendant in a preferential transfer action. In order to prevail on one of these defenses, the defendant must plead and prove the exception. In re F & S Central Manufacturing Corp., 53 B.R. 842, 846 (Bankr.E.D.N.Y.1985); In re Tinnell Traffic Services, Inc., 43 B.R. 277, 280 (Bankr.M.D.Tenn.1984); Matter of Georgia Steel, Inc., 38 B.R. 829, 838 (Bankr.M.D.Ga.1984). Summary judgment will be granted in favor of. the trustee on a § 547 affirmative defense if the defendant fails to present evidence showing he is entitled to the defense. See In re Production Steel, Inc., 54 B.R. 417 (Bankr.M.D.Tenn.1985). In the present case, the defendant relies on the “contemporaneous exchange” exception of 11 U.S.C. § 547(c)(1) and the “ordinary course of business” exception of 11 U.S.C. § 547(c)(2). Section 547(c)(1) provides that the trustee may not avoid a transfer which is intended to be a “contemporaneous exchange for new value given to the debtor,” and which is “in fact a substantially contemporaneous exchange.” This rule is based on the principle that the transfer of new value to the debtor offsets the payment made by the debtor so that the debt- or’s estate is not depleted to the detriment of other creditors. In re Auto-Train Corp., 49 B.R. 605, 612 (D.D.C.1985), aff'd, 800 F.2d 1153 (D.C.Cir.1986). The defendant cannot prevail on this defense for at least two reasons. First, since all the legal services performed by the defendant around the time of the transfer were on behalf of Mr. Walsh, rather than the debt- or, there was no new value given to the debtor. Secondly, the parties must have intended that the exchange be contemporaneous from the outset. In re Naudain, Inc., 32 B.R. 871, 874 (Bankr.E.D.Pa.1983). In this case, most of the legal services for which the debtor made payment had already been performed before the meeting of February 27, 1986, at which the defendant first" }, { "docid": "4769102", "title": "", "text": "of credit was a conventional loan. By contract and by stipulation in this adversary proceeding, “ledger overdrafts” caused by Montgomery’s use of uncollected funds in the Main Funding Account were covered by draws against this authorized loan until its exhaustion. That TNB immediately converted the use of uncollected funds in the Main Funding Account into conventional debt by draws against the line of credit demonstrates the Bank’s perception and intent that the use of uncollected funds in the Main Funding Account rendered Montgomery the Bank’s debtor. This debtor/creditor relationship continued after exhaustion of the line of credit — only the accounting technique changed. Instead of drawing against the line of credit, the Bank accounted for its right of payment from Montgomery by calculating average, negative collected balances and assessing “analysis charges” each month. B. CONTEMPORANEOUS EXCHANGE DEFENSE In a variation on its antecedent debt argument, TNB asserts it “contemporaneously exchanged new value” by surrendering its right of dishonor of ZBA checks for deposits to the Main Funding Account. As the Sixth Circuit explained, “two elements are crucial to the establishment of the contemporaneous exchange exception: (1) The parties must intend that the exchange be substantially contemporaneous; (2) the exchange must in fact be substantially contemporaneous.” Ray v. Security Mutual Fin. Corp. (In re Arnett), 731 F.2d 358, 362 (6th Cir.1984). Intent alone is not sufficient — the exchange must “in fact” be contemporaneous in that there must be “temporal proximity between the [new value] and the [debtor’s] trans-fer_” Id. at 364. “New value” can be in the form of a release of rights, but the § 547(c)(1) defense is available only where the value of the rights released is equivalent to the full amount of the transfer by the debtor. See Lowrey v. U.P.G., Inc. (In re Robinson Bros. Drilling, Inc.), 877 F.2d 32, 33 (10th Cir.1989) explaining Kenan v. Fort Worth Pipe Co. (In re Rodman), 792 F.2d 125 (10th Cir.1986) and citing Jet Florida, Inc. v. American Airlines, Inc. (In re Jet Florida, Inc.), 861 F.2d 1555, 1559 (11th Cir.1988). The party asserting the § 547(c)(1) defense must" }, { "docid": "15288156", "title": "", "text": "fact a substantially contemporaneous exchange.” 11 U.S.C. § 547(c)(1). The trustee does not dispute that the security deeds were intended to be contemporaneous exchanges for new value given to the debtor, so the subpara-graph (A) condition is met. The trustee does, however, contend that the exchange was not in fact substantially contemporaneous, as required by the subparagraph (B) condition. We have not yet had the opportunity to define the term “substantially contemporaneous” in § 547(c)(1)(B) outside the context of enabling loans. Other dr cuits have, and they have split over whether to transport the ten-day period specified in the relation-back provision, id. § 547(e)(2)(A), into “substantially contemporaneous,” or instead define the term in a way that requires a case-by-case consideration of all the facts in order to decide if a given transfer was substantially contemporaneous. Compare Collins v. Greater Atl. Mortg. Corp. (In re Lazarus), 478 F.3d 12, 19 (1st Cir.2007) (interpreting “substantially contemporaneous” as requiring the exchange to occur within the ten day relation-back period under § 547(e)(2)(A)), and Ray v. Sec. Mut. Fin. Corp. (In re Arnett), 731 F.2d 358, 363 (6th Cir.1984) (same), with Lindquist v. Dorholt, Inc. (In re Dorholt Inc.), 224 F.3d 871, 874 (8th Cir.2000) (holding that whether an exchange is “substantially contemporaneous” must be determined on a case-by-case basis), and Dye v. Rivera (In re Marino), 193 B.R. 907, 915 (9th Cir. BAP 1996) (same), aff'd, 117 F.3d 1425 (9th Cir.1997); see also Pine Top Ins. Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 969 F.2d 321, 328 (7th Cir.1992) (interpreting “substantially contemporaneous” in 11 U.S.C. § 547(c)(1)(B) to require a flexible inquiry in a state insurance law case). We are unconvinced by the reasons that the First and Sixth Circuits have given for writing into § 547(c)(l)(B)’s “substantially contemporaneous” term the ten-day rule contained in § 547(e)(2)(A). See In re Lazarus, 478 F.3d at 19; In re Arnett, 731 F.2d at 363. The result in those circuits is a bright line rule that is drawn at the expense of adherence to the statutory language. Section 547(c)(1)(B) does not set out" }, { "docid": "18791452", "title": "", "text": "exception contained in Section 547(c)(6). 1. Section 547(c)(1) — Contemporaneous Exchanges for New Value Section 547(c)(1) provides that a trustee may not avoid a transfer to the extent that transfer was: (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor, and (B) in fact a substantially contemporaneous exchange. (emphasis added). 11 U.S.C. § 547(c)(1) (Supp.V.1981). The firm’s reliance upon the exception found in Section 547(c)(1) is misplaced. That subsection was meant to apply to cash or quasi-cash transactions. Section 547(c)(1) provides an express exemption for transfers made to a creditor shortly after the creditor has extended new value to the debtor. In re Hudson, supra, 29 B.R. 67. To satisfy the exemption, three elements must be proven. First, the creditor must have extended new value to the debtor, which is defined as “money or money’s worth in goods [or] services.” 11 U.S.C. § 547(a)(2). The performance of legal services by the firm constitutes such new value. Second, the parties must have intended the new value and reciprocal transfer by the debtor be contemporaneous. In re Hudson, 29 B.R. at 77. Lastly, the exchange must in fact have been contemporaneous. As the bankruptcy judge correctly held, the instant transfer was neither intended to be contemporaneous nor was it in fact contemporaneous. By specifically stating that new value in the form of legal services would be provided prior to the transfer of 40% of any settlement of judgment, the fee arrangement itself indicates that neither the debtor nor the firm intended the provision of legal services and payment thereof be contemporaneous. Nor has the firm established that the transfer was “in fact a substantially contemporaneous exchange,” since the firm provided legal services for over one month before receiving the $8,914.84 in issue. Moreover, as noted by the bankruptcy judge, the firm’s billing statements demonstrate that it received payment on December 3, 1981 and January 4, 1982 for legal services dating from October 11, 1981. As a result, this Court finds that the" }, { "docid": "7656549", "title": "", "text": "respect to the Payments it received from the Debtors reimbursing it for funds already expended on behalf of the employees. II. Contemporaneous Exchange for New Value Defense Section 547(c)(1) of the Bankruptcy Code provides that: The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. Three elements are necessary: (i) the transfer must be for new value given to the debtor; (ii) the transfer must be intended to be a contemporaneous exchange; and (iii) the transfer must be in fact a substantially contemporaneous exchange. 11 U.S.C. § 547(c)(1); see Stevenson v. Leisure Guide of Am., Inc. (In re Shelton Harrison), 202 F.3d 834, 837 (6th Cir.2000); Tyler v. Swiss Am. Sec., Inc. (In re Lewellyn & Co., Inc.), 929 F.2d 424, 429 (8th Cir.1991); Computer Personalities Sys. v. Aspect Computer (In re Computer Personalities Sys., Inc.), 320 B.R. 812, 818-19 (E.D.Pa.2005); Gray v. Oppenheimer & Co. (In re Molten Metal Tech., Inc.), 262 B.R. 172, 176 (Bankr.Mass.2001); Cimmaron Oil Co. v. Cameron Consultants, Inc., 71 B.R. 1005, 1008 (N.D.Tex.1987). The purpose of the exception is “to encourage creditors to continue to deal with troubled debtors,” and transfers protected under § 547(c)(1) are not preferential “because other creditors are not adversely affected if the debtor’s estate receives new value.” Jones Truck Lines, Inc. v. Central States, S.E. and S.W. Areas Pension Funds (In re Jones Truck Lines, Inc.), 130 F.3d 323, 326 (8th Cir.1997); 5 Collier on Bankruptcy ¶ 547.04[l][b] (15th ed.2005). We will consider, first, whether new value was given to the Debtors and second, whether the Payments were intended to be and were in fact substantially contemporaneous with the alleged “new value.” A. New Value The first question is whether new value was provided to the Debtors in exchange for the Payments. New value is defined in § 547(a)(2) to mean “money or money’s" }, { "docid": "13182380", "title": "", "text": "transfer [was] in fact a substantially contemporaneous exchange.” See Buckwald Capital Advisors LLC v. Metl-Span I., Ltd. (In re Pameco Corp.), 356 B.R. 327, 338 (Bankr.S.D.N.Y.2006) (quoting Official Comm. of Unsecured Creditors of 360networks (USA) Inc. v. U.S. Relocation Servs., Inc. (In re 360networks (USA) Inc.), 338 B.R. 194, 204 (Bankr.S.D.N.Y.2005)). Because § 547(c)(1) is framed in the conjunctive, the Defendants have to prove all three elements. See 11 U.S.C. § 547(c)(1)(A)-(B). The Defendants failed to prove the second and third elements. No testimony or evidence in the record establishes that BMC intended the challenged payments to be contemporaneous exchanges for new value or that they were in fact contemporaneous exchanges for new value. The court therefore turns to whether the transfers were for subsequent new value under § 547(c)(4). “The purpose of the new value exception, like that of the other § 547(c) exceptions, is to encourage creditors to continue to deal with troubled debtors without fear that they will have to disgorge payments received for value given.” Hall-Mark Elecs. Corp. v. Sims (In re Lee), 108 F.3d 239, 241 (9th Cir.1997). Consistent with this purpose, § 547(c)(4) provides that a transfer to a creditor may not be avoided “to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor.” 11 U.S.C. § 547(c)(4). In relevant part, “new value” means “money or money’s worth in goods, services, or new credit.” 11 U.S.C. § 547(a)(2). To prevail on a § 547(c)(4) defense, the Defendants have to prove: (i) the creditor extended new value to the debtor after receiving the preference, (ii) the new value was unsecured, and (iii) the new value remains unpaid. See Wolinsky v. Cent. Vt. Teachers Credit Union (In re Ford), 98 B.R. 669, 680 (Bankr.D.Vt.1989) (collecting cases); accord Savage & Assocs., P.S. v. Level(3) Commc’ns (In re Teligent, Inc.), 315 B.R. 308, 315 (Bankr.S.D.N.Y.2004) (“A transferee, may, under § 547(c)(4), offset a preferential transfer to the extent he gave the debtor ‘new value’ after the date of the transfer, and the ‘new value’ remains unpaid.”). The first" } ]

[ { "docid": "6376909", "title": "", "text": "Richard Hunter, “The Pollution Exclusion in the Comprehensive General Liability Insurance Policy,” 1986 U. of Ill.L.Rev. 897, 903-906; E. Joshua Rosenkranz, Note, “The Pollution Exclusion Through the Looking Glass,” 74 Geo.L.J. 1237, 1241-53 (1986); Morton International v. General Accident Insurance Company, 134 N.J. 1, 629 A.2d 831, 849-855 (1993), cert. denied, — U.S. -, 114 S.Ct. 2764, 129 L.Ed.2d 878 (1994); Just v. Land Reclamation Ltd., 157 Wis.2d 507, 456 N.W.2d 570, 573-75 (1990). Therefore, the court will look beyond the four corners of AT & T’s counterclaim when describing the drafting and adoption of the pollution-exelusion clause. Prior to 1966, standard CGL Policies afforded liability coverage for bodily and property damage “caused by accident,” the term ■ “accident” being undefined. See, e.g., Casper v. American Guarantee & Liability Insurance Company, 408 Pa. 426, 184 A.2d 247 (1962). Although insurers argued that these policies covered only brief - catastrophic events, courts generally construed these policies to cover ongoing events that inflicted injury over an extended period so long as the injury was both unintended and unexpected from the insured’s viewpoint. Morton, 629 A.2d at 849. See, e.g., Casper, 184 A.2d at 249 (“to constitute an accident, the occurrence must be an unusual or unexpected result attending the operation or performance of a usual or necessary act or event”). Therefore, the pre-1966 policies covered injury or damage resulting from extended exposure to poilutants. New Castle County v. Hartford Accident and Indemnity Company, 933 F.2d 1162, 1196 (3d Cir.1991) (citing Moffat v. Metropolitan Casualty Insurance Company, 238 F.Supp. 165, 172-73 (M.D.Pa. 1964)). In 1966, the insurance industry revised its standard CGL Policy to afford coverage based upon the happening of an “occurrence.” An occurrence was defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Britamco Underwriters v. Grzeskiewicz, 433 Pa.Super. 55, 639 A.2d 1208, 1210 (1994). The 1966 revision of the standard CGL Policy “was generally understood to cover pollution liability that arose from gradual losses, and was acknowledged as having been" } ]

[ { "docid": "16460683", "title": "", "text": "by the insurance industry’s official explanation for its 1970 revisions to the standard CGL policy. Consequently, the pollution exclusion clause is construed to “provide coverage identical with that provided under the prior occurrence-based policy, except that the clause [is] interpreted to preclude coverage in cases in which the insured intentionally discharges a known pollutant, irrespective of whether the resulting property damage was intended or expected.” Morton Int’l, Inc. v. General Accident Ins. Co. of Am., 134 N.J. 1, 629 A.2d 831, 875 (1993). Within this legal framework, Millipore would be entitled to coverage for its CERCLA liability if it could prove that it never intentionally discharged a known pollutant. In contrast, the pollution exclusion clause is interpreted much more expansively under Massachusetts law. The SJC has never recognized New Jersey’s doctrine of regulatory estoppel in this context, and there is no indication that Massachusetts would adopt the doctrine. Indeed, in Lumbermens Mutual Casualty Co. v. Belleville Industries, Inc., 407 Mass. 675, 555 N.E.2d 568 (1990) (“Belleville I ”), the SJC refused to consider the drafting history of the pollution exclusion clause in determining the meaning of the term ‘sudden’ in the clause. The court reasoned that the term is unambiguous and therefore that no extrinsic evidence is necessary to understand its meaning. Belleville I, 555 N.E.2d at 573; see also Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 610 N.E.2d 912, 916 n. 7 (1993) (striking amici curiae briefs solely devoted to discussing the drafting and regulatory history of the pollution exclusion clause). Under the Massachusetts interpretation of the pollution exclusion clause, Millipore would need to make a stronger showing to survive a motion for summary judgment. There is a conflict between New Jersey and Massachusetts law over the interpretation of the pollution exclusion clause. The question becomes whether the district court correctly applied Massachusetts law to the disputes involving the New Jersey sites. This determination involves two distinct analyses, one for the policies issued by Hartford and INA to Millipore and the other for the policy issued by Hartford to Worthington before it was acquired by Millipore. Massachusetts" }, { "docid": "6376910", "title": "", "text": "unexpected from the insured’s viewpoint. Morton, 629 A.2d at 849. See, e.g., Casper, 184 A.2d at 249 (“to constitute an accident, the occurrence must be an unusual or unexpected result attending the operation or performance of a usual or necessary act or event”). Therefore, the pre-1966 policies covered injury or damage resulting from extended exposure to poilutants. New Castle County v. Hartford Accident and Indemnity Company, 933 F.2d 1162, 1196 (3d Cir.1991) (citing Moffat v. Metropolitan Casualty Insurance Company, 238 F.Supp. 165, 172-73 (M.D.Pa. 1964)). In 1966, the insurance industry revised its standard CGL Policy to afford coverage based upon the happening of an “occurrence.” An occurrence was defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Britamco Underwriters v. Grzeskiewicz, 433 Pa.Super. 55, 639 A.2d 1208, 1210 (1994). The 1966 revision of the standard CGL Policy “was generally understood to cover pollution liability that arose from gradual losses, and was acknowledged as having been intended to broaden coverage by avoiding an implication that there was no coverage for a continuing condition as distinguished from a sudden event.” Morton, 629 A.2d at 849 (citations omitted). As the Court of Appeals for the Third Circuit has noted, “the standard occurrence-based policy ... covered property damage resulting from gradual pollution.” New Castle County, 933 F.2d at 1197. In 1970, the insurance industry, foreseeing an increase in the number of environmental claims and cognizant of the interpretation being given to the 1966 CGL Policies, set out to draft the standard pollution-exclusion clause. The standard pollution-exclusion clause was drafted by committees of insurance representatives sponsored by the Insurance Service Office (“ISO”), and its predecessor organization, the Insurance Rating Board (“IRB”). The standard pollution-exclusion clause bars insurance coverage for: bodily injury or property damage arising out of the discharge, dispersal, release, or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic materials or other irritants, contaminants, or pollutants into or upon land, the atmosphere, or any watercourse or body of water; but this exclusion does" }, { "docid": "15978606", "title": "", "text": "in the phrase \"sudden and accidental” is ambiguous because \"sudden” arguably means \"unexpected” or “unintended,\" both synonyms of \"accidental,” in addition to \"abrupt” or \"quick.” Jurisdictions that conclude \"sudden\" is ambiguous generally interpret the phrase \"sudden and accidental” in favor of the insured to mean \"unexpected and unintended,” but not “abrupt or quick and unexpected or unintended.” See id. The highest courts of Colorado, Georgia, Illinois, New Jersey, Washington, West Virginia, and Wisconsin have ruled that the term \"sudden” is ambiguous when read in conjunction with \"accidental,\" and thus does not mean “abrupt” or \"quick.” See Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083 (Colo.1991); Claussen v. Aetna Casualty & Sur. Co., 259 Ga. 333, 380 S.E.2d 686 (1989); Outboard Marine Co. v. Liberty Mut. Ins. Corp., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992); Morton Int’l, Inc. v. General Accident Ins. Co., 134 N.J. 1, 629 A.2d 831 (1993), cert. denied, — U.S. -, 114 S.Ct. 2764, 129 L.Ed.2d 878 (1994); Queen City Farms, Inc. v. Central National Insurance Co. of Omaha, 126 Wash.2d 50, 882 P.2d 703 (1994); Joy Technologies, Inc. v. Liberty Mut. Ins. Co., 187 W.Va. 742, 421 S.E.2d 493 (1992); Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 456 N.W.2d 570 (1990). Courts that have concluded \"sudden and accidental” means \"unexpected and unintended” without reference to a temporal element of \"abrupt\" or \"quick” interpret the pollution exclusion clause in favor of the insured, and .conclude that instances of gradual or continuous pollution are \"unexpected and unintended,” and thereby within the exception to the pollution exclusion clause. E.g., Queen City Farms, 882 P.2d at 721, 725; Hecla Mining Co., 811 P.2d at 1092; see also Sharon M. Murphy, Note, The “Sudden and Accidental” Exception to the Pollution Exclusion Clause in Comprehensive General Liability Insurance Policies: The Gordian Knot of Environmental Liability, 45 Vand.L.Rev. 161, 179 (1992). . See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700 (Fla.1993); Lumbermens Mut. Casualty Co. v. Belleville Indus., Inc., 407 Mass. 675, 555 N.E.2d 568 (1990); Upjohn Co. v. New Hampshire Ins." }, { "docid": "4304088", "title": "", "text": "pollution liability that arose from gradual losses, and was acknowledged as having been intended to broaden coverage by avoiding an implication that there was no coverage for a continuing condition as distinguished from a sudden event.” Morton, 629 A.2d at 849 (citations omitted). As the Court of Appeals for the Third Circuit has noted, “the standard occurrence-based policy ... covered property damage resulting from gradual pollution.” New Castle County, 933 F.2d at 1197. In 1970, the insurance industry, foreseeing an increase in the number of environmental claims and cognizant of the interpretation being given to the 1966 CGL Policies, set out to draft the standard pollution-exclusion clause. The standard pollution-exclusion clause was drafted by committees of insurance representatives sponsored by the Insurance Service Office (“ISO”), and its predecessor organization, the Insurance Rating Board (“IRB”). Diversified Industries, 884 F.Supp. at 957. The 1970 standard pollution exclusion clause appears in Hyde’s CGL policies from Continental and GNY. In order to include this new version of the pollution exclusion clause in CGL policies, insurers were required to gain the approval of regulatory agencies across the nation. The IRB and the Mutual Insurance Rating Bureau (“MIRB”) filed the pollution-exclusion clauses with state regulatory agencies throughout the country, including Pennsylvania. In filing the clauses, the IRB and MIRB allegedly contended that the pollution-exclusion clauses merely clarified the occurrence-based insurance policy, and did not restrict coverage in any manner. Because the pollution-exclusion clause has since been interpreted as a limitation on insurance coverage, however, Plaintiffs contend that the insurance industry, Defendants included, committed acts of deceit and conspired to fraudulently misrepresent the meaning of the pollution-exclusion clause in 1970. In Pennsylvania, the courts have rejected using the regulatory and drafting history of the pollution exclusion clause to determine the clause’s true meaning. Northern Ins. Co. of New York v. Aardvark Assoc., 743 F.Supp. 379, 381(W.D.Pa.1990), aff'd, 942 F.2d 189 (3d Cir.1991) (unambiguous language of pollution exclusion clause precludes court from analyzing clause’s drafting history); Lower Paxton Twp. v. U.S. Fidelity and Guaranty Co., 383 Pa.Super. 558, 557 A.2d 393, 402-03 n. 5, alloc. denied, 523 Pa." }, { "docid": "2438055", "title": "", "text": "coverage of the “occurrence” provision, governs.’ Id. at 1490 (footnote omitted).”); Hartford, 962 F.2d at 1490 (“While an accidental ‘occurrence’ may be gradual, the discharge of pollution has more precise requirements for coverage.”). See also Fireman’s Fund Ins. Cos. v. Ex-Cell-O Corp., 702 F.Supp. at 1823-24 (“sudden and accidental” not defined according to meaning of “accident” in “occurrence” definition). H. “Drafting History” of the CGL Pollution Exclusion Clause. The Court has reexamined the so-called “drafting history” of the CGL policy pollution exclusion clauses, including the treatment given the subject by the detailed dissenting opinion in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700 (1993), and the majority opinion in Morton International, Inc. v. General Accident Ins. Co. of America, 134 N.J. 1, 629 A.2d 831 (1993), at least to the extent that those references to “drafting history” illuminate those courts’ reasoning in reaching the conclusions they did. Morton, for example, admittedly adopted a narrower reading of the “sudden and accidental” exception than the literal language of the clause would suggest, based upon representations made by the insurance industry in the course of obtaining regulatory approval in New Jersey for the language of the pollution exclusion, particularly the representation that it was drafted merely to “clarify” the definition of “occurrence” to exclude intentional polluters: notwithstanding the literal terms of the standard pollution exclusion clause, that clause will be construed to provide coverage identical to that provided under the prior occurrence-based policy, except that the clause will be interpreted to preclude coverage in cases in which the insured intentionally discharges a known pollutant, irrespective of whether the resulting property damage was intended or expected. 134 N.J. at 78, 629 A.2d at 875 (emphasis in original). See also Continental Ins. Co. v. Beecham, Inc., 836 F.Supp. 1027, 1039 (D.N.J.1993). As it did in Hartford, 962 F.2d at 1492, the Tenth Circuit in Anaconda declined “to consider the drafting history of the pollution exclusion. Under Utah law extrinsic evidence will not be considered where a contract is unambiguous. Williams v. First Colony Life Ins. Co., 593 P.2d 534, 536 (Utah 1979).”" }, { "docid": "2438054", "title": "", "text": "the scope of the agreement, and then to exclude the specific risks which the insurer does not cover. Id. See also Crawford v. Ranger Ins. Co., 653 F.2d 1248, 1250-51 (9th Cir.1981) (insuring agreement’s preconditions to coverage may be narrowed by other policy terms). The broad sweep of the occurrence definition is restricted by the pollution exclusion. Specifically, the exclusion provides that the policy does not apply to injuries or damage arising from the discharge or release of pollutants. Accordingly, the exclusion relieves Hartford of any obligation to provide coverage in cases where the damage is caused by the continuous and repeated discharge of PCBs. The Liabili ty Policy should not be viewed as ambiguous merely because the pollution exclusion excludes coverage for certain risks that the occurrence definition potentially includes. 765 F.Supp. at 677. The Tenth Circuit’s view is substantially in accord. See Anaconda, 990 F.2d at 1179 (“We found in Hartford as we do here that ‘[i]f the loss “arises out of the discharge of pollution,” the pollution exclusion, not the more generous coverage of the “occurrence” provision, governs.’ Id. at 1490 (footnote omitted).”); Hartford, 962 F.2d at 1490 (“While an accidental ‘occurrence’ may be gradual, the discharge of pollution has more precise requirements for coverage.”). See also Fireman’s Fund Ins. Cos. v. Ex-Cell-O Corp., 702 F.Supp. at 1823-24 (“sudden and accidental” not defined according to meaning of “accident” in “occurrence” definition). H. “Drafting History” of the CGL Pollution Exclusion Clause. The Court has reexamined the so-called “drafting history” of the CGL policy pollution exclusion clauses, including the treatment given the subject by the detailed dissenting opinion in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700 (1993), and the majority opinion in Morton International, Inc. v. General Accident Ins. Co. of America, 134 N.J. 1, 629 A.2d 831 (1993), at least to the extent that those references to “drafting history” illuminate those courts’ reasoning in reaching the conclusions they did. Morton, for example, admittedly adopted a narrower reading of the “sudden and accidental” exception than the literal language of the clause would suggest, based upon" }, { "docid": "10458419", "title": "", "text": "\"remedial action” under CERCLA. .Two other matters should be addressed. First, MRC, relying on the \"regulatory estoppel” doctrine as set out in Morton Int’l, Inc. v. General Accident Ins. Co., 134 N.J. 1, 629 A.2d 831 (1993), argues that National Union should be estopped from denying coverage because of certain representations it made to the Nevada regulatory authorities when it put the “Hazardous Substance Remedial Action Exclusion\" into place. It suffices to say that, while the topic has not been addressed by the Nevada Supreme Court, it has been rejected by other courts, see, e.g., Federated Mut. Ins. Co. v. Botkin Grain Co., 64 F.3d 537 (10th Cir.1995) (Kansas law); cf. Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 610 N.E.2d 912, 916 n. 7 (1993) (refusing to consider the drafting history of the pollution exclusion), and would likely meet with a dim reception in Nevada, in light of this state’s rule that a contract is ambiguous only if it is subject to more than one reasonable interpretation, and that an unambiguous contract is not properly construed by resort to extrinsic evidence, Margrave v. Dermody Properties, Inc., 110 Nev. 824, 878 P.2d 291, 293 (1994), of which drafting or regulatory history is but one sort. Moreover, the Nevada Supreme Court has rejected an insurance company's attempt to rely on documents other than the policy in deciding the scope of coverage, and presumably would take the same view of an attempt by an insured to rely on such extrinsic matter. See Allstate Ins. Co. v. Maglish, 94 Nev. 699, 586 P.2d 313, 316 (1978) (\"sound judicial policy favors determining an insured’s rights from the face of the policy or documents which form part of the bargain”). Second, National Union has moved for summary judgment with respect to another, entirely separate CGL policy (the \"1984 policy”) which it issued to MRC. The coverage provided by that policy ended on April 1, 1985. MRC makes a brief and halfhearted argument, see Doc. # 99 at 19, that it is covered under the 1984 policy, but that is clearly not so: the policy," }, { "docid": "15978605", "title": "", "text": "spills and leaks in the usual course of recycling used oil at the Ekotek Site, the pollution exclusion clauses in the insurance policies at issue bar coverage for Plaintiffs property damage claims. Accordingly, we AFFIRM the district court’s entry of summary judgment in favor of Defendants. AFFIRMED. . CERCLA imposes liability for response costs, including removal, remedial, investigatory, and “any other necessary costs” on \"any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facilily or incineration vessel owned or operated by another party or entity and containing such hazardous substances.” 42 U.S.C. § 9607(a)(3). . The interpretation of the phrase \"sudden and accidental” within the pollution exclusion clause has split the courts. See St. Paul Fire and Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195, 1200 (1st Cir.1994) (discussing split of authority). Generally, state courts divide on whether the term “sudden” in the phrase \"sudden and accidental” is ambiguous because \"sudden” arguably means \"unexpected” or “unintended,\" both synonyms of \"accidental,” in addition to \"abrupt” or \"quick.” Jurisdictions that conclude \"sudden\" is ambiguous generally interpret the phrase \"sudden and accidental” in favor of the insured to mean \"unexpected and unintended,” but not “abrupt or quick and unexpected or unintended.” See id. The highest courts of Colorado, Georgia, Illinois, New Jersey, Washington, West Virginia, and Wisconsin have ruled that the term \"sudden” is ambiguous when read in conjunction with \"accidental,\" and thus does not mean “abrupt” or \"quick.” See Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083 (Colo.1991); Claussen v. Aetna Casualty & Sur. Co., 259 Ga. 333, 380 S.E.2d 686 (1989); Outboard Marine Co. v. Liberty Mut. Ins. Corp., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992); Morton Int’l, Inc. v. General Accident Ins. Co., 134 N.J. 1, 629 A.2d 831 (1993), cert. denied, — U.S. -, 114 S.Ct. 2764, 129 L.Ed.2d 878 (1994); Queen City Farms, Inc. v. Central National Insurance" }, { "docid": "4304086", "title": "", "text": "support their claims of deceit. Plaintiffs allege that Defendants committed acts of deception by promulgating to state insurance regulators, and later selling to Plaintiffs, insurance policies which the Defendants knew to be ambiguous. The court rejects these arguments. The seminal case in the development of the regulatory estoppel argument is Morton International, Inc. v. General Accident Ins. Co. of America, 134 N.J. 1, 629 A.2d 831 (1993), cert. denied, 512 U.S. 1245, 114 S.Ct. 2764, 129 L.Ed.2d 878 (1994). In Continental Cas. Co. v. Diversified Industries, Inc., 884 F.Supp. 937, 956-61 (E.D.Pa.1995), this court outlined the drafting history of the pollution exclusion clause, as it was described by Morton and several commentators addressing regulatory estoppel: Prior to 1966, standard CGL Policies afforded liability coverage for bodily and property damage “caused by accident,” the term “accident” being undefined. See, e.g., Casper v. American Guarantee & Liability Insurance Company, 408 Pa. 426, 184 A.2d 247 (1962). Although insurers argued that these policies covered only brief catastrophic events, courts generally construed these policies to cover ongoing events that inflicted injury over an extended period so long as the injury was both unintended and unexpected from the insured’s viewpoint. Morton, 629 A.2d at 849. See, e.g., Casper, 184 A.2d at 249 (“to constitute an accident, the occurrence must be an unusual or unexpected result attending the operation or performance of a usual or necessary act or event”). Therefore, the pre-1966 policies covered injury or damage resulting from extended exposure to pollutants. New Castle County v. Hartford Accident and Indemnity Company, 933 F.2d 1162, 1196 (3d Cir.1991)(citing Moffat v. Metropolitan Casualty Insurance Company, 238 F.Supp. 165, 172-73 (M.D.Pa.1964)). In 1966, the insurance industry revised its standard CGL Policy to afford coverage based upon the happening of an “oecurrence.” An occurrence was defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Britamco Underwriters v. Grzeskiewicz, 433 Pa.Super. 55, 639 A.2d 1208, 1210 (1994). The 1966 revision of the standard CGL Policy “was generally understood to cover" }, { "docid": "16460682", "title": "", "text": "so we turn to Massachusetts choice of law principles. Spurlin v. Merchants Ins. Co., 57 F.3d 9, 10 (1st Cir.1995) (forum choice of law rules govern federal courts sitting in diversity). Millipore argues that the law of New Jersey should govern the dispute involving the New Jersey sites, while the insurers contend that the law of Massachusetts should be applied to the entire case. Our review of the district court’s choice of law determination is de novo. In re San Juan Dupont Plaza Hotel Fire Litig., 45 F.3d 569, 576 (1st Cir.1995). The first step in performing a choice of law analysis is to determine whether there is a conflict between the substantive laws of the interested jurisdictions. New Jersey insurance law recognizes the doctrine of regulatory estoppel, which in this context limits the applicability of the pollution exclusion clause as a result of misrepresentations allegedly made by the insurance industry to insurance regulators about the purpose and scope of the clause. Under New Jersey law, the meaning of the pollution exclusion clause is limited by the insurance industry’s official explanation for its 1970 revisions to the standard CGL policy. Consequently, the pollution exclusion clause is construed to “provide coverage identical with that provided under the prior occurrence-based policy, except that the clause [is] interpreted to preclude coverage in cases in which the insured intentionally discharges a known pollutant, irrespective of whether the resulting property damage was intended or expected.” Morton Int’l, Inc. v. General Accident Ins. Co. of Am., 134 N.J. 1, 629 A.2d 831, 875 (1993). Within this legal framework, Millipore would be entitled to coverage for its CERCLA liability if it could prove that it never intentionally discharged a known pollutant. In contrast, the pollution exclusion clause is interpreted much more expansively under Massachusetts law. The SJC has never recognized New Jersey’s doctrine of regulatory estoppel in this context, and there is no indication that Massachusetts would adopt the doctrine. Indeed, in Lumbermens Mutual Casualty Co. v. Belleville Industries, Inc., 407 Mass. 675, 555 N.E.2d 568 (1990) (“Belleville I ”), the SJC refused to consider the drafting" }, { "docid": "11413375", "title": "", "text": "see also Nolan v. American States Preferred Insurance Company, 851 S.W.2d 720, 723 (Mo.Ct.App.1993) (“Courts will not create an ambiguity in order to distort the language of an unambiguous insurance policy”); General American Life Insurance Company v. Barrett, 847 S.W.2d 125, 130 (Mo.Ct.App.1993) (“if the policy is not ambiguous, the court cannot construe it but must express terms of the policy as it is written”); West v. Jacobs, 790 S.W.2d 475, 477 (Mo.Ct. App.1990) (noting that where language in an insurance policy is unequivocal, it is to be given its plain meaning notwithstanding the fact that it appears in a restrictive provision of a policy). It is thus clear that Missouri has implicitly if not explicitly rejected Estrin. The Eighth Circuit cannot be faulted for doing the same. Plaintiffs also argue that the drafting history of the pollution exclusion clause shows that the insurance industry originally took the position that “sudden and accidental” meant “unexpected and unintended” as that phrase is used in the definition of the word “occurrence” found in the standard form comprehensive general liability (“CGL”) insurance policies. They argue that for public policy reasons, Missouri would not allow the defendants to retreat from this position. General Dynamics made the same estoppel argument in its brief to the Eighth Circuit. See Appendix C to Defendant’s October 13, 1993 Response to Plaintiffs’ Notice of Supplemental Authority. Although the Eight Circuit did not specifically address the argument in its opinion, it implicitly rejected it by finding in favor of the insurers. In arguing that the Eighth Circuit was wrong in doing so, plaintiffs do not turn to Missouri law but to a 1992 opinion from the West Virginia Court of Appeals, Joy Technologies v. Liberty Mutual Insurance Company, 187 W.Va. 742, 421 S.E.2d 493 (1992), and a recently decided case from the Supreme Court of New Jersey, Morton International, Inc. v. General Accident Insurance Company of America, 134 N.J. 1, 629 A.2d 831 (1993). In both of these cases the courts construed the pollution exclusion clause against the insurance companies after finding that the insurance industry, when seeking state approval" }, { "docid": "4304085", "title": "", "text": "410 Pa.Super. 31, 598 A.2d 1310, 1315 (1991) (citations omitted). Plaintiffs have failed to produce any evidence of a misrepresentation by the Defendant insurers about the retention policy, of Plaintiffs’ reliance on a reasonable understanding that the Defendants would retain the policies, or any damages resulting from the retention policies. Nor has Plaintiffs’ research or the research of this court revealed a case in which a document retention and destruction policy supported a cause of action for deceit against the insurer. Summary judgment for the Defendant insurers is therefore appropriate on this element of the claim. VIII. CONSPIRACY TO MISREPRESENT OR CONCEAL FACTS Count V, conspiracy to misrepresent or conceal facts, asserts what is referred to as a “regulatory estoppel” theory. According to Plaintiffs, the drafting and regulatory history of the pollution exclusion clause reveals that the insurance industry and the defendant insurers intentionally misled state regulators and the public about the scope of the clause. In addition, Plaintiffs urge the court to analyze the drafting and regulatory history of the pollution exclusion clause to support their claims of deceit. Plaintiffs allege that Defendants committed acts of deception by promulgating to state insurance regulators, and later selling to Plaintiffs, insurance policies which the Defendants knew to be ambiguous. The court rejects these arguments. The seminal case in the development of the regulatory estoppel argument is Morton International, Inc. v. General Accident Ins. Co. of America, 134 N.J. 1, 629 A.2d 831 (1993), cert. denied, 512 U.S. 1245, 114 S.Ct. 2764, 129 L.Ed.2d 878 (1994). In Continental Cas. Co. v. Diversified Industries, Inc., 884 F.Supp. 937, 956-61 (E.D.Pa.1995), this court outlined the drafting history of the pollution exclusion clause, as it was described by Morton and several commentators addressing regulatory estoppel: Prior to 1966, standard CGL Policies afforded liability coverage for bodily and property damage “caused by accident,” the term “accident” being undefined. See, e.g., Casper v. American Guarantee & Liability Insurance Company, 408 Pa. 426, 184 A.2d 247 (1962). Although insurers argued that these policies covered only brief catastrophic events, courts generally construed these policies to cover ongoing events that" }, { "docid": "4304087", "title": "", "text": "inflicted injury over an extended period so long as the injury was both unintended and unexpected from the insured’s viewpoint. Morton, 629 A.2d at 849. See, e.g., Casper, 184 A.2d at 249 (“to constitute an accident, the occurrence must be an unusual or unexpected result attending the operation or performance of a usual or necessary act or event”). Therefore, the pre-1966 policies covered injury or damage resulting from extended exposure to pollutants. New Castle County v. Hartford Accident and Indemnity Company, 933 F.2d 1162, 1196 (3d Cir.1991)(citing Moffat v. Metropolitan Casualty Insurance Company, 238 F.Supp. 165, 172-73 (M.D.Pa.1964)). In 1966, the insurance industry revised its standard CGL Policy to afford coverage based upon the happening of an “oecurrence.” An occurrence was defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Britamco Underwriters v. Grzeskiewicz, 433 Pa.Super. 55, 639 A.2d 1208, 1210 (1994). The 1966 revision of the standard CGL Policy “was generally understood to cover pollution liability that arose from gradual losses, and was acknowledged as having been intended to broaden coverage by avoiding an implication that there was no coverage for a continuing condition as distinguished from a sudden event.” Morton, 629 A.2d at 849 (citations omitted). As the Court of Appeals for the Third Circuit has noted, “the standard occurrence-based policy ... covered property damage resulting from gradual pollution.” New Castle County, 933 F.2d at 1197. In 1970, the insurance industry, foreseeing an increase in the number of environmental claims and cognizant of the interpretation being given to the 1966 CGL Policies, set out to draft the standard pollution-exclusion clause. The standard pollution-exclusion clause was drafted by committees of insurance representatives sponsored by the Insurance Service Office (“ISO”), and its predecessor organization, the Insurance Rating Board (“IRB”). Diversified Industries, 884 F.Supp. at 957. The 1970 standard pollution exclusion clause appears in Hyde’s CGL policies from Continental and GNY. In order to include this new version of the pollution exclusion clause in CGL policies, insurers were required to gain" }, { "docid": "22921572", "title": "", "text": "light of the multiplicity of dictionary definitions of the word “sudden” and the inability of courts nationwide to agree upon a single construction of the term, we think that it is appropriate to trace the history of the pollution exclusion clause. More importantly, the Delaware Superior Court recently- determined in E.I. du Pont de Nemours & Co. v. Admiral Insurance Co., No. 89C-AU-99, 1990 WL 14100 (Del.Super. Sept. 19, 1990), that, under Delaware law, a court “must consider the context and circumstances surrounding the meaning of what otherwise appears to be clear and unambiguous ... language.” Slip op. at 14-15 (granting plaintiff du Pont’s motion to compel discovery of the drafting history of “absolute” pollution exclusions even though those exclusions appeared to be “clear and unambiguous” on their face). The district court record reveals that, prior to 1966, the standard CGL policy covered bodily injury and property damage “caused by accident.” Although these early policies did not define the word “accident,” insurers, hoping to limit coverage to brief catastrophic events, argued that the term did not embrace gradual damage. This argument, however, was roundly rejected by the judiciary, which instead held that “accident” policies covered unintended injury or damage resulting from, among other things, extended exposure to pollutants. See, e.g., Moffat v. Metropolitan Casualty Insurance Co., 238 F.Supp. 165, 172-73 (M.D.Pa.1964). In acknowledgment of the prevailing case law, the insurance industry in 1966 increased premiums and switched to “occurrence-based” coverage. The standard policy defined an occurrence as “ ‘an accident, including continuous or repeated ex posure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.’ ” Note, The Pollution Exclusion Clause Through the Looking Glass, 74 Geo.L.J. 1237, 1246-47 (1986). The standard, occurrence-based policy thus covered property damage resulting from gradual pollution. So long as the ultimate loss was neither expected nor intended, courts generally extended coverage to all pollution-related damage, even if it arose from the intentional discharge of pollutants. Id. at 1250. The parties’ respective accounts of the history begin to diverge at" }, { "docid": "6376953", "title": "", "text": "discharge, and therefore have an occurrence, yet still be excluded from coverage because the discharge was expected and intended”) (construing Delaware law), cert. denied, — U.S. -, 113 S.Ct. 1846, 123 L.Ed.2d 470 (1993). See generally \"Construction and Application of Pollution Exclusion Clause in Liability Insurance Policy,” 39 A.L.R.4th 1047 (1985). . Courts have accorded different treatment to parol evidence depending upon whether it is being used to establish the meaning of the pollution-exclusion clause or to make out a claim of equitable estoppel. In Anderson v. Minnesota Insurance Guaranty Association, 520 N.W.2d 155 (Minn.Ct.App.1994), the insurance company defended on the grounds that the pollution exclusion clause previously had been interpreted to be . unambiguous, and that an earlier case, Sylvester Brothers Development Company v. Great Century Insurance Company, 480 N.W.2d 368 (Minn.Ct. App.1992), had excluded evidence of the pollution-exclusion clause’s drafting history. The court responded: The court in Sylvester Bros, was not asked to, and did not, decide the equitable estoppel claim advanced in the present case. The court was faced with the task of determining the definition of \"sudden” in the “sudden and accidental” exception to the pollution exclusion ____ The appellants in Sylvester Bros, argued that the drafting history of the pollution exclusion clause established the meaning of the clause. This court rejected that argument, holding the clause was unambiguous and would be interpreted according to its plain language. The claim in the present case is that, despite the unambiguous language of the pollution ex-elusion clause, respondents are estopped to enforce the policy as it is written because misrepresentations were made to obtain approval of the policy. Appellants do not seek to vary the language of the pollution exclusion; they seek to void the clause. The claim is an analog to the use of extrinsic evidence to show fraud in the inducement to enter into a contract. The district court erred in holding that ... Sylvester Bros, foreclosed this argument. Anderson, at 159-160. See also Morton International v. General Accident Insurance Company of America, 134 N.J. 1, 629 A.2d 831 (1993). The court finds Anderson to be" }, { "docid": "21789679", "title": "", "text": "to turn on this chronological discrepancy, if discrepancy there be. Actually, it seems a reasonable surmise that there is no real discrepancy. The history provided in New Castle (see note 44, infra) appears to establish that insurance industry representatives were presenting and explaining the proposed clause to state regulatory officials as early as 1970; but it may have taken a few years, for the clause to be accepted and introduced into policies nationwide. . The New Castle court’s account of the history of the pollution exclusion follows (933 F.2d at 1196-98 (footnotes omitted)); The district court record reveals that, prior to 1966, the standard CGL policy covered bodily injury and property damage \"caused by accident.” Although these early policies did not define the word \"accident,” insurers, hoping to limit coverage to brief catastrophic events, argued that the term did not embrace gradual damage. This argument, however, was roundly rejected by the judiciary, which instead held that “accident” policies covered unintended injury or damage resulting from, among other things, extended exposure to pollutants. See, e.g., Moffat v. Metropolitan Casualty Insurance Co., 238 F.Supp. 165, 172-73 (M.D.Pa.1964). In acknowledgment of the prevailing case law, the insurance industry in 1966 increased premiums and switched to \"occurrence-based” coverage. The standard policy defined an oc currence as \" 'an accident, including continuous or repeated exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.’ ” Note, The Pollution Exclusion Clause Through the Looking Glass, 74 Geo.L.J. 1237, 1246-47 (1986). The standard, occurrence-based policy thus covered property damage resulting from gradual pollution. So long as the ultimate loss was neither expected nor intended, courts generally extended coverage to all pollution-related damage, even if it arose from the intentional discharge of pollutants. Id. at 1250. The parties' respective accounts of the history begin to diverge at around 1970. At that time, amid growing public awareness of the deleterious environmental effects of pollution, insurers again changed their insurance policies. In particular, they tacked the pollution exclusion clause onto their occurrence-based policies, thereby disclaiming" }, { "docid": "4304084", "title": "", "text": "promulgation of the standard pollution exclusion clause contained in the policies. The court will address the second claim in this section, and will discuss Defendants’ understanding of the pollution exclusion clause and the promulgation of the pollution exclusion clause in the following section. Plaintiffs have produced evidence that the Defendant insurers utilized “document retention policies,” pursuant to which the insurers destroyed expired CGL policies. Plaintiffs assert a claim for deceit based on the fact that the Defendant insurers destroyed these CGL policies after advertising to potential clients that CGL policies would protect insureds from long-tail claims twenty or thirty years into the future, and did not notify their insureds of the retention policy. Plaintiffs also allege that the retention policy is further evidence of Defendants’ bad faith. The elements of a cause of action for fraud or deceit in Pennsylvania are: (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) with intention to induce reliance thereby, (4) justifiable reliance on the misrepresentation, and (5) damages as a proximate result. Wilson v. Donegal Mut. Ins. Co., 410 Pa.Super. 31, 598 A.2d 1310, 1315 (1991) (citations omitted). Plaintiffs have failed to produce any evidence of a misrepresentation by the Defendant insurers about the retention policy, of Plaintiffs’ reliance on a reasonable understanding that the Defendants would retain the policies, or any damages resulting from the retention policies. Nor has Plaintiffs’ research or the research of this court revealed a case in which a document retention and destruction policy supported a cause of action for deceit against the insurer. Summary judgment for the Defendant insurers is therefore appropriate on this element of the claim. VIII. CONSPIRACY TO MISREPRESENT OR CONCEAL FACTS Count V, conspiracy to misrepresent or conceal facts, asserts what is referred to as a “regulatory estoppel” theory. According to Plaintiffs, the drafting and regulatory history of the pollution exclusion clause reveals that the insurance industry and the defendant insurers intentionally misled state regulators and the public about the scope of the clause. In addition, Plaintiffs urge the court to analyze the drafting and regulatory history of the pollution exclusion clause to" }, { "docid": "11413376", "title": "", "text": "general liability (“CGL”) insurance policies. They argue that for public policy reasons, Missouri would not allow the defendants to retreat from this position. General Dynamics made the same estoppel argument in its brief to the Eighth Circuit. See Appendix C to Defendant’s October 13, 1993 Response to Plaintiffs’ Notice of Supplemental Authority. Although the Eight Circuit did not specifically address the argument in its opinion, it implicitly rejected it by finding in favor of the insurers. In arguing that the Eighth Circuit was wrong in doing so, plaintiffs do not turn to Missouri law but to a 1992 opinion from the West Virginia Court of Appeals, Joy Technologies v. Liberty Mutual Insurance Company, 187 W.Va. 742, 421 S.E.2d 493 (1992), and a recently decided case from the Supreme Court of New Jersey, Morton International, Inc. v. General Accident Insurance Company of America, 134 N.J. 1, 629 A.2d 831 (1993). In both of these cases the courts construed the pollution exclusion clause against the insurance companies after finding that the insurance industry, when seeking state approval of the clause, had made statements to state insurance regulators indicating that the clause did not significantly limit pre-existing coverage. The court in Joy Technologies based its decision on West Virginia’s “public policy” in insuring that foreign corporations “which seek to do business in West Virginia act in a manner consistent with their ... representations to the State”. Id. 421 S.E.2d at 497. Similarly, the Morton court noted that New Jersey “has long recognized the doctrine that an insurer who misrepresents the coverage of, or the exclusions from, an insurance contract to the insured’s detriment may be estopped from denying coverage on a risk not covered by the policy.” Id. 134 N.J. at 74, 629 A.2d 831. Plaintiffs have pointed to no Missouri authority which indicates that Missouri would agree with these sentiments. In fact, as this Court has already noted in its September 7, 1988 Memorandum Opinion, the courts in Missouri have consistently held that estoppel cannot be used to bring within the coverage of an insurance policy a loss or risk which is" }, { "docid": "6376954", "title": "", "text": "of determining the definition of \"sudden” in the “sudden and accidental” exception to the pollution exclusion ____ The appellants in Sylvester Bros, argued that the drafting history of the pollution exclusion clause established the meaning of the clause. This court rejected that argument, holding the clause was unambiguous and would be interpreted according to its plain language. The claim in the present case is that, despite the unambiguous language of the pollution ex-elusion clause, respondents are estopped to enforce the policy as it is written because misrepresentations were made to obtain approval of the policy. Appellants do not seek to vary the language of the pollution exclusion; they seek to void the clause. The claim is an analog to the use of extrinsic evidence to show fraud in the inducement to enter into a contract. The district court erred in holding that ... Sylvester Bros, foreclosed this argument. Anderson, at 159-160. See also Morton International v. General Accident Insurance Company of America, 134 N.J. 1, 629 A.2d 831 (1993). The court finds Anderson to be persuasive. Therefore, although Lower Paxon — like Sylvester Bros. — precludes the use of parol evidence to interpret the pollution-exclusion clause, the court will allow such evidence to enter the case as part of counterclaim plaintiffs' misrepresentation claim. . The most comparable cases are Morton International, 134 N.J. 1, 629 A.2d 831 (1993), and Anderson, 520 N.W.2d 155 (Minn.Ct.App.1994). There, the courts held that insurance companies are equitably estopped from contradicting their regulatory representations concerning the scope and intent of the pollution-exclusion clause. Because these cases involved estoppel claims, how ever, they do not directly support AT & T's claim that a cause of action in misrepresentation is appropriate here. . In addition, AT & T has alleged that misrepresentations were made on behalf of counterclaim defendants. For instance, paragraph 153 of AT & T's counterclaims provides that “In 1970, on behalf of the CNA Companies, among others, IRB and MIRB filed the limited pollution exclusion endorsement with insurance regulatory agencies throughout the country.” See Counterclaims, ¶ 153. See also Counterclaims, ¶¶ 154-159. . Counterclaim" }, { "docid": "21789678", "title": "", "text": "Grange Mutual Insurance Co. v. Continental Casualty Insurance Co., 650 F.Supp. 1404 (S.D.N.Y.1986); Colonie Motors, Inc. v. Hartford Accident & Indemnity Co., 145 A.D.2d 180, 538 N.Y.S.2d 630 (1989); Allstate Insurance Co. v. Klock Oil Co., 73 A.D.2d 486, 426 N.Y.S.2d 603 (1980); Kipin Industries v. American Universal Insurance Co., 41 Ohio App.3d 228, 535 N.E.2d 334 (1987); Buckeye Union Insurance Co. v. Liberty Solvents & Chemicals Co., 17 Ohio App.3d 127, 477 N.E.2d 1227 (1984); Benedictine Sisters of St. Mary’s Hospital v. St. Paul Fire & Marine Insurance Co., 815 F.2d 1209 (8th Cir.1987); United Pacific Insurance Co. v. Van’s Westlake Union, Inc., 34 Wash.App. 708, 664 P.2d 1262, review denied, 100 Wash.2d 1018 (1983); Just v. Land Reclamation, Ltd., 155 Wis.2d 737, 456 N.W.2d 570 (1990); Compass Insurance Co. v. Cravens, Dargan & Co., 748 P.2d 724 (Wyo.1988). . As pointed out in note 8, supra, the Broad-well court stated that the pollution exclusion clause appeared in 1973, whereas the New Castle court traced the genesis of the clause to 1970. Nothing appears to turn on this chronological discrepancy, if discrepancy there be. Actually, it seems a reasonable surmise that there is no real discrepancy. The history provided in New Castle (see note 44, infra) appears to establish that insurance industry representatives were presenting and explaining the proposed clause to state regulatory officials as early as 1970; but it may have taken a few years, for the clause to be accepted and introduced into policies nationwide. . The New Castle court’s account of the history of the pollution exclusion follows (933 F.2d at 1196-98 (footnotes omitted)); The district court record reveals that, prior to 1966, the standard CGL policy covered bodily injury and property damage \"caused by accident.” Although these early policies did not define the word \"accident,” insurers, hoping to limit coverage to brief catastrophic events, argued that the term did not embrace gradual damage. This argument, however, was roundly rejected by the judiciary, which instead held that “accident” policies covered unintended injury or damage resulting from, among other things, extended exposure to pollutants. See, e.g., Moffat" } ]

[ { "docid": "16394860", "title": "", "text": "was indicted is unconstitutional. For reasons to be stated, we conclude that the statute is not only constitutional on its face, but that under the facts the defendant has brought himself within the condemnation of the statute. Congress has passed other legislation making illegal the interstate transportation of obscenity by public means or media. The Supreme Court, in affirming a conviction under the statute now in issue, stated that the purpose of this legislation was “to prevent the channels of interstate commerce from being used to disseminate any matter that, in its essential nature, communicates obscene, lewd, lascivious or filthy ideas.” United States v. Alpers, 338 U.S. 680, 683, 70 S.Ct. 352, 354, 94 L.Ed. 457 (1950). While from time to time arguments have been advanced questioning the wisdom of laws censoring materials thought to be obscene, it is beyond dispute that Congress has the power to forbid interstate transportation of obscenity. The case of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, decided this year and relied upon by the appellant, is not to the contrary. There the Supreme Court merely struck down a statute as unconstitutional insofar as it made criminal the mere private possession of obscene material in one’s own home. The decision did not deal with congressional power to regulate the interstate transportation of obscene material by common carrier. The evidence adduced by the Government in the instant case stems chiefly from the search of the suitcase. If this evidence is properly in the case, the statute under which defendant was indicted is clearly applicable. We find no merit in the contention that, as applied to the proven facts, the statute is unconstitutional. II A more substantial contention made by the appellant is that the trial court erred in upholding the sufficiency of the affidavit upon which the search warrant was issued. On this point we agree with appellant. A United States Commissioner issued the search warrant upon a supporting affidavit filed by the FBI pursuant to Rule 41(c), Fed.R.Crim.P. This affidavit was the only information from which the Commissioner could determine" } ]

[ { "docid": "21936172", "title": "", "text": "own conduct is constitutionally protected. United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. This rule has been relaxed in cases dealing with statutes affecting free expression. See United States v. Raines, supra, at 22, 80 S.Ct. 519 (dictum); Thornhill v. Alabama, 1940, 310 U.S. 88, 96-98, 60 S.Ct. 736, 84 L.Ed. 1093; Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). However, even where free speech is involved, it may be that standing should not be granted unless the defendant’s conduct is at least arguably constitutionally privileged. Cf. Brown v. Louisiana, 1966, 383 U.S. 131, 143, 147-148, 86 S.Ct. 719, 15 L.Ed.2d 637 (concurring opinion of Mr. Justice Brennan); Dennis v. United States, 341 U.S. 494, 515-517, 71 S.Ct. 857, 95 L.Ed. 1137. We do not reach such questions. JULIAN, District Judge (dissenting). I do not agree with the majority. The constitutionality of the Massachusetts criminal obscenity statute is presently being litigated in the Massachusetts Courts. Pending final adjudication by the Supreme Judicial Court of the plaintiffs’ appeal from their conviction in the Superior Court for violating that statute, this Court should abstain from taking further action in this case and should not interfere with the enforcement of the statute by the Commonwealth by enjoining its public officials from prosecuting the plaintiffs for additional violations of the statute should they persist in exhibiting the film while their conviction still stands. It is my understanding that for the purpose of deciding the questions presently before us the Court assumes that the film involved in this litigation is in fact obscene within the meaning of the law. In fact, no evidence has been taken and no finding made on this issue by this Court. The Superior Court has found the film to be obscene. The plaintiffs’ reliance on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), is untenable. The case before us is governed by Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The precise issue in Roth" }, { "docid": "21936176", "title": "", "text": "sanctions upon the mere [knowing] possession of obscene matter’ is constitutional.” The Court points out (pp. 560-561, 89 S.Ct. p. 1246) that neither Roth nor any subsequent decision dealt with that question but “dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter.” (Emphasis supplied.) And again at p. 567, 89 S.Ct. at p. 1249: “But that case [Roth] dealt with public distribution of obscene materials and such distribution is subject to different objections.” In note 10 on the same page the Court makes reference to the Model Penal Code § 251.4 (American Law Institute, Proposed Official Draft, 1962) which would also make commercial dissemination of obscene matter a criminal offense. The Court concludes by stating (p. 568, 89 S.Ct. p. 1250): “We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.” Thus the Supreme Court itself has declared in clear, unambiguous language that the holding in Roth has not been overruled by the decision in Stanley and is still the law. Accordingly, on the authority of Roth, I would reject as wholly unjustified the plaintiffs’ contention that the Massachusetts obscenity-statute is unconstitutional on its face. On the question of abstention the pertinent cases are Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, and Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444. In both those cases the statutes under attack were held to be overbroad and susceptible of sweeping and improper application and therefore justifiably attacked on their face as abridging expression protected by the First Amendment. Additionally, though threatened with prosecution, the petitioner in neither case was then in fact being prosecuted for violating the challenged statute and consequently" }, { "docid": "8139650", "title": "", "text": "and city officials have not yet had the opportunity to enforce House Bill 626. Plaintiffs’ suits thus constitute facial challenges to a statute that has yet to be authoritatively interpreted or enforced. The Supreme Court has consistently entertained facial challenges when first amendment rights have been at stake. As Justice Marshall recently emphasized, the Supreme Court has “repeatedly recognized that a statute which sweeps within its ambit a broad range of expression protected by the First Amendment should be struck down on its face.” United States v. Grace, —U.S. —, —, 103 S.Ct. 1702, 1712, 75 L.Ed.2d 736 (1983) (Marshall, J., concurring in part and dissenting in part) (footnote omitted). See, e.g., United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 609-610, 87 S.Ct. 675, 687-688, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 19, 86 S.Ct. 1238, 1242, 16 L.Ed.2d 321 (1966); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940); Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938). Specifically, the Supreme Court has upheld such overbreadth challenges in cases involving the regulation of obscenity. See, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Were facial challenges not permitted, overbroad statutes would often restrict protected expression, even though they might ultimately be declared unconstitutional. To begin with, first amendment freedoms “are delicate and vulnerable,” and the very “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.” NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Unconstitutionally overbroad statutes can chill protected expression by causing “a continuous and pervasive restraint on all freedom of discussion that might reasonably" }, { "docid": "23126294", "title": "", "text": "too broadly, it has the effect of inhibiting constitutionally protected speech. Plaintiff is a member of the group at which Rule 31 is directed and, as such, his right to speak is presently subject to curtailment by Rule 31. This is sufficient to establish his standing to challenge the rule quite apart from any specific sanction which has been imposd upon him for its violation. Button, supra. See also Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L.Ed.2d 22 and Soglin v. Kauffman, 7 Cir., 418 F.2d 163, 166 (1969). What we have said thus far largely disposes of any claim that Count II does not present a controversy ripe' for adjudication. Again, we stress that plaintiff alleges a present infringement of his right to speak resulting from the mere existence of the allegedly overbroad rule and the threatened sanctions for its violation. The Supreme Court has repeatedly recognized that because “freedoms of expression in general * * * are vulnerable to gravely damaging yet barely visible encroachments,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), the mere threat of the imposition of sanctions is sufficient present infringement to justify redress. See, e. g., Dombrowski, supra, 380 U.S. at 486, 85 S.Ct. 1116; Baggett v. Bullitt, 377 U.S. 360, 374, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Bantam Books, supra, 372 U.S. at 67, 83 S.Ct. 631; Button, supra, 371 U.S. at 433, 83 S.Ct. 328 and Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). On the merits, plaintiff argues that Rule 31 is both vague and overbroad. The rule prohibits “any activity, conversation, deliberation, or discussion which is derogatory to the Department * * *» We think it clear beyond dispute that the rule is overbroad. In substance, it prohibits all criticism by policemen of the department. It may no longer be seriously asserted that public employees, including policemen, have no right to criticize their employer. “[P]olicemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” Garrity" }, { "docid": "20578347", "title": "", "text": "to children or imposed on unwilling adults. The defendant urges that under Stanley the transportation and receipt of obscene matter for private use is constitutionally protected, and that only certain types of public distribution of obscene matter, as described in Redrup, may be subjected to governmental control. The United States, on the other hand, urges that Stanley did not purport to modify Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and that, on its limited facts, Stanley permits an individual to possess obscene materials in his own home, but it does not grant one a protected right to transport or receive such materials. In its per curiam opinion in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), the court observed that in none of the cases which were then before the court “ * * * was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.” (p. 769, 87 S.Ct. p. 1415). Two courts of appeal have decided eases which tend to support the government’s position. In United States v. Melvin, 419 F.2d 136 (4th Cir. 1969), the court concluded that notwithstanding Stanley, “Congress has the power to forbid interstate transportation of obscenity.” (p. 139). Also, in United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970), the court rejected a proposed expansion of Stanley. A three-judge court convened in the northern district of Georgia decided “to keep Stanley limited to its facts”. Gable v. Jenkins, 309 F.Supp. 998, 1000 (N.D. Ga.1969). This case was summarily affirmed at 397 U.S. 592 (1970). There are a number of cases in which the rationale of Stanley has been construed more broadly than the three decisions referred to immediately above. Thus, in Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), probable jurisdiction noted sub nom., Dyson v. Stein, 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (1969) , restored to calendar for reargument, 399 U.S. 922, 90 S.Ct. 2230, 26" }, { "docid": "10671539", "title": "", "text": "did not meet the burden incumbent upon them to preserve the seclusion of their sexual acts. As such they relinquished their right to privacy in the performance of these acts, and they could lawfully be prosecuted for them. The Court next turns to the issue of whether the Lovisis have standing to attack their conviction on the grounds that Va.Code Ann. § 18.1-212 is unconstitutionally overbroad because it could not be enforced against consenting adults committing sodomitic acts in private. The concept of standing has several aspects. It may refer to standing to sue, which concerns whether the individual is sufficiently affected by that which he assails to insure his adversariness in prosecuting his claim. Or, it may refer as it does here to standing to challenge a particular action or statute on particular grounds. The principal question surrounding this type of standing is whether the party seeking to challenge an action or statute alleges that it is his rights which have been violated or rather those of some other party. In United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), the United States Supreme Court restated the principle of constitutional adjudication concerning the latter sort of standing: One to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional- Id. at 21, 80 S.Ct. at 522. The Court noted, however, that there are certain exceptions to this general rule. In the area of first amendment freedoms, for example, parties whose conduct is not constitutionally protected may be able to attack a statute upon which they are charged or convicted because of the chilling effect which that law may have upon others whose acts are protected. E. g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). In areas other than freedom of expression, a litigant may base" }, { "docid": "18475796", "title": "", "text": "mails, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; [or] (4) ... (B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if— (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section. 18 U.S.C. § 2252(a)(1), (2), & (4)(B). Defendant challenges the statute he is charged under as unconstitutionally over-broad and vague. As these arguments are legally intertwined, the court treats them together. See Local 189 Int’l Union of Police Ass’ns v. Barrett, 524 F.Supp. 760, 765 (N.D.Ga.1981). The court then briefly addresses defendant’s claim that the rule in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) permits an individual to possess child pornography in the privacy of his home. The substantive and procedural due process challenges to the statute are addressed at the end of this section. 1. Overbreadth and Vagueness A statute is overbroad under the First Amendment when in addition to proscribing activities which may properly be forbidden, it also sweeps within its coverage activity protected by the guarantee of free speech. E.g., Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903-04, 84 L.Ed. 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940). The overbreadth doctrine is powerful in free expression cases, as the movant need not demonstrate that his or her conduct was protected, as long as the court is persuaded that the statute infringes upon an unacceptable level of activity privileged under the First Amendment. See Kunz v. New York, 340 U.S. 290, 71 S.Ct." }, { "docid": "22387945", "title": "", "text": "taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the “line drawing” familiar in the judicial, as in the legislative process: “thus far but not beyond.” Perspectives may change, but our conclusion is that Stanley represents such a line of demarcation; and it is not unreasonable to assume that had it not been so delineated, Stanley would not be the law today. See United States v. Reidel, 402 U. S. 351, 354-356 (1971); id., at 357-360 (Harlan, J., concurring). See also Miller v. United States, 431 F. 2d 655, 657 (CA9 1970); United States v. Fragus, 428 F. 2d 1211, 1213 (CA5 1970); United States v. Melvin, 419 F. 2d 136, 139 (CA4 1969); Gable v. Jenkins, 309 F. Supp. 998, 1000-1001 (ND Ga. 1969), aff’d, 397 U. S. 592 (1970). Cf. Karalexis v. Byrne, 306 F. Supp. 1363, 1366 (Mass. 1969), vacated on other grounds, 401 U. S. 216 (1971). We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene material simply because it is imported for private use only. To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale. We have already indicated that the protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to have someone sell or give it to others. United States v. Thirty-seven Photographs, supra, at 376 (opinion of White, J.), and United States v. Reidel, supra, at 355. Nor is there any correlative right to transport obscene material in interstate commerce. United States v. Orito, post, at 142-144. It follows that Stanley does not permit one to go abroad and bring such material into the country for private purposes. “Stanley’s emphasis was on the freedom of thought and mind" }, { "docid": "8139651", "title": "", "text": "Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940); Lovell v. Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938). Specifically, the Supreme Court has upheld such overbreadth challenges in cases involving the regulation of obscenity. See, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Were facial challenges not permitted, overbroad statutes would often restrict protected expression, even though they might ultimately be declared unconstitutional. To begin with, first amendment freedoms “are delicate and vulnerable,” and the very “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.” NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Unconstitutionally overbroad statutes can chill protected expression by causing “a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within [their] purview.” Thornhill v. Alabama, 310 U.S. at 98, 60 S.Ct. at 742. Only by permitting facial attacks on such statutes can the unfettered exercise of first amendment freedoms be protected. Second, facial challenges are necessary because the alternative of awaiting the outcome of individual prosecutions in state courts does not adequately protect first amendment freedoms. Aside from the enormously high costs and lengthy delays involved, see, e.g., Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967); Dombrowski v. Pfister, 380 U.S. at 486-87, 490-91, 85 S.Ct. at 1120-21, 1122-23; Baggett v. Bullitt, 377 U.S. 360, 378-79, 84 S.Ct. 1316, 1326-27, 12 L.Ed.2d 377 (1964), a person thinking of engaging in protected behavior may be deterred from acting by the risk of conviction, even though his challenge to the law might eventually be upheld. Consequently, the chill on protected activity deters those whose legal challenges are necessary to narrow an overly broad statute. Absent facial challenges to overbreadth, then, “the contours of [a statute] would" }, { "docid": "5352234", "title": "", "text": "* * with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093; NAACP v. Button, 371 U.S. [415], at 432-433, 83 S.Ct. at 337-338, 9 L.Ed.2d 405; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517, 84 S.Ct. 1659, 1668-1669, 12 L.Ed.2d 992; United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 522-523, 4 L.Ed.2d 524. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the ‘ * * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.’ NAACP v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338.” Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22. Nor can we agree with defendants that this exception to standing requirements is limited to eases presenting challenges to criminal statutes. Such a literal reading overlooks the main function of the exception. The thrust of cases such as Dombrowski lies in their attempt to counteract the “chilling effect upon the exercise of First Amendment rights” which may result from the very fact of prosecution. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116. Administrative sanctions as harsh as those available to the University in this case, as well as criminal statutes, serve to chill the exercise of free speech. It is accordingly immaterial that this controversy involves a disciplinary rule rather than a criminal statute. Turning to the merits, defendants contend that the “misconduct” doctrine does not constitute a “standard” of conduct and that it was not employed as such. They argue that “misconduct” represents the inherent power of the University to discipline students and that this power may be exercised without the necessity of relying on a specific rule of conduct. This rationale would justify the ad hoc imposition of discipline without reference to any preexisting" }, { "docid": "21936171", "title": "", "text": ". For a further discussion of Stanley v. Georgia, see The Supreme Court, 1968 Term, 83 Harv.L.Rev. 7, 147 — 154 (1969). . The fact that plaintiffs are economically motivated is of no significance. New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. In Interstate Circuit, Inc. v. Dallas, 1968, 390 U.S. 676 at 684, 88 S.Ct. 1298 at 1303, 20 L.Ed.2d 225, the Court spoke disapprovingly of the effect of the Dallas ordinance upon “one who wishes to convey his ideas through that medium [films], which of course includes one who is interested not so much in expression as in making money * * . There is an alternative possibility, that the Supreme Judicial Court would find the film not obscene. The Superior Court, in an elaborate opinion, has found otherwise. We are not moved by the thought that we should postpone permitting plaintiffs to exhibit their film on the ground that, after all, it is not obscene. . Normally standing is granted only when a defendant’s own conduct is constitutionally protected. United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. This rule has been relaxed in cases dealing with statutes affecting free expression. See United States v. Raines, supra, at 22, 80 S.Ct. 519 (dictum); Thornhill v. Alabama, 1940, 310 U.S. 88, 96-98, 60 S.Ct. 736, 84 L.Ed. 1093; Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). However, even where free speech is involved, it may be that standing should not be granted unless the defendant’s conduct is at least arguably constitutionally privileged. Cf. Brown v. Louisiana, 1966, 383 U.S. 131, 143, 147-148, 86 S.Ct. 719, 15 L.Ed.2d 637 (concurring opinion of Mr. Justice Brennan); Dennis v. United States, 341 U.S. 494, 515-517, 71 S.Ct. 857, 95 L.Ed. 1137. We do not reach such questions. JULIAN, District Judge (dissenting). I do not agree with the majority. The constitutionality of the Massachusetts criminal obscenity statute is presently being litigated in the Massachusetts Courts. Pending final adjudication by the Supreme" }, { "docid": "10671540", "title": "", "text": "Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), the United States Supreme Court restated the principle of constitutional adjudication concerning the latter sort of standing: One to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional- Id. at 21, 80 S.Ct. at 522. The Court noted, however, that there are certain exceptions to this general rule. In the area of first amendment freedoms, for example, parties whose conduct is not constitutionally protected may be able to attack a statute upon which they are charged or convicted because of the chilling effect which that law may have upon others whose acts are protected. E. g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). In areas other than freedom of expression, a litigant may base his claim upon the rights of-others when those rights will necessarily be affected by the outcome of the litigant’s suit. E. g., Eisenstadt v. Baird, 405 U. 5. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed. 510 (1965); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). The Court in Raines also recognized that a defendant in a criminal action might have standing to raise the rights of those who could not constitutionally be prosecuted under the statute where the vast majority of the intended applications of the statute are unconstitutional and when it could be fairly said that the statute was not intended to stand as valid in those few cases where it could be applied lawfully. E. g., Butts v. Merchants & Miners Transportation Co., 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422 (1913). Similarly, a litigant may raise third party rights where an attempt to sever the constitutional applications of a statute from its unconstitutional ones" }, { "docid": "20578348", "title": "", "text": "avoid exposure to it.” (p. 769, 87 S.Ct. p. 1415). Two courts of appeal have decided eases which tend to support the government’s position. In United States v. Melvin, 419 F.2d 136 (4th Cir. 1969), the court concluded that notwithstanding Stanley, “Congress has the power to forbid interstate transportation of obscenity.” (p. 139). Also, in United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970), the court rejected a proposed expansion of Stanley. A three-judge court convened in the northern district of Georgia decided “to keep Stanley limited to its facts”. Gable v. Jenkins, 309 F.Supp. 998, 1000 (N.D. Ga.1969). This case was summarily affirmed at 397 U.S. 592 (1970). There are a number of cases in which the rationale of Stanley has been construed more broadly than the three decisions referred to immediately above. Thus, in Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), probable jurisdiction noted sub nom., Dyson v. Stein, 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (1969) , restored to calendar for reargument, 399 U.S. 922, 90 S.Ct. 2230, 26 L. Ed.2d 788 (1970), a three-judge court asserted that it was “impossible, however, for this Court to ignore the broader implications of the opinion which appears to reject or significantly modify the proposition stated in Roth v. United States [354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498] * * The court went on to say (p. 606): “Stanley expressly holds that obscenity is protected in the context of mere private possession and in our opinion further suggests that obscenity is deprived of this protection only in the context of ‘public actions taken or intended to be taken with respect to obscene matter’.” The court in Stein concluded that the Texas obscenity statute “as a whole is overbroad in that it fails to confine its application to a context of public or commercial dissemination.” (p. 607). Another court which considered the impact of Stanley is Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969), probable jurisdiction noted, 397 U.S. 985, 90 S.Ct. 1123, 25 L.Ed.2d 394 (1970), restored to calendar for reargument 399 U.S. 922, 90 S.Ct." }, { "docid": "14273997", "title": "", "text": "communication of ideas to voters. See Brown v. Hartlage, 456 U.S. 45, 53-54, 102 S.Ct. 1523, 1528-1529, 71 L.Ed.2d 732 (1982). The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163 [1170], 2 L.Ed.2d 1488 (1958), stemmed from the Court’s recognition that ‘[effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.’ Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 632-633, 46 L.Ed.2d 659 (1976). Facial invalidity exists where either a statute is “unconstitutional in every conceivable application,” or it “seeks to prohibit such a broad range of protected conduct” that it is “overbroad.” City Council, — U.S. at -, 104 S.Ct. at 2124, 80 L.Ed.2d at 781. A claim of substantial overbreadth seeks to invalidate statutes that may infringe protected expressions of third parties. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when ‘no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,’ Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116 [1123] 14 L.Ed.2d 22, 31 (1965), the transcendent value of all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,’ id., at 486 [85 S.Ct. at 1121].... This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression. Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972) (citations omitted). For a court to find that a statute is overbroad, it' must find the existence of" }, { "docid": "18202586", "title": "", "text": "60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940). The rationale for the doctrine is based in our country’s firm belief in the importance of the First Amendment rights to a free society. Fear of the “chilling effect” of overbroad penal statutes on First Amendment rights has persuaded the Supreme Court that the law should not tolerate statutes “susceptible of sweeping and improper application.” N. A. A. C. P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963) The Court has determined that the excise of particular invalid applications is not a sufficient protection in some cases and it is said to have “employed the First Amendment overbreadth doctrine to short circuit the process by invalidating the statute and putting it up to the legislature for redrafting.” Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 845 (1970). Furthermore, a statute challenged under the overbreadth doctrine may be held invalid “whether or not the record discloses that the petitioner has engaged in privileged conduct.” N. A. A. C. P. v. Button, 371 U.S. 415, 432, 83 S Ct. 328, 337 (1963); see also Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Thornhill v. Alabama, 310 U.S. 88, 98, 60 S.Ct. 736 (1940). However, the Supreme Court, in Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), had before it a statute with terms nearly identical to those of the statute involved in this case. It is to be noted that the criminal information in Street was not drawn so narrowly as the indictment before the court here. The information there charged the defendant with “ ‘the crime of Malicious Mischief in that [he] did willfully and unlawfully defile, cast contempt upon and burn an American Flag * * * under the following circumstances: * * * [he] did willfully and unlawfully set fire to an American Flag and shout, “If they did that to Meredith,. We don’t need an American Flag.” ’ ” Street v. New York, supra at 579, 89 S.Ct. at 1359. The" }, { "docid": "16895714", "title": "", "text": "speech” — especially where, as here, “the overbroad statute imposes criminal sanctions.” Hicks, 539 U.S. at 119, 123 S.Ct. 2191 (citing Schaumburg, 444 U.S. at 634, 100 S.Ct. 826; Bates v. State Bar of Ariz., 433 U.S. 350, 380, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). The reason for this is that “free expression may be inhibited almost as easily by the potential or threatened use of power as by the actual exercise of that power.” N.Y. State Club, 487 U.S. at 11, 108 S.Ct. 2225 (citing Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)). We are concerned that “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Hicks, 539 U.S. at 119, 123 S.Ct. 2191 (citation omitted). Thus “[o]verbreadth adjudication, by suspending all enforcement of an overinclusive law, reduces these social costs caused by the withholding of protected speech.” Id. As long as “the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one.” Dombrowski v. Pfister, 380 U.S. 479, 494, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). But “[fjacial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” Broadrick, 413 U.S. at 613, 93 S.Ct. 2908 (citing Dombrowski, 380 U.S. at 491, 85 S.Ct. 1116; Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951)). Therefore, we must consider any limiting construction of the statute that Michigan can present. Vill. of Hoffman Estates, 455 U.S. at 495 n. 5, 102 S.Ct. 1186 (“[i]n evaluating a facial challenge to a state law, a" }, { "docid": "16110930", "title": "", "text": "1176, 1182 n.11 (5th Cir. 1973); Krahm v. Graham, 461 F.2d 703, 707 (9th Cir. 1972). In the leading case in the area, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), plaintiffs sought declaratory relief in addition to an injunction restraining the defendants from prosecuting or threatening to prosecute them for alleged violations of the Louisiana Subversive Activities and Communist Control Law and the Communist Propaganda Control Law. Plaintiffs claimed that the challenged statutes violated the First and Fourteenth Amendments and were being enforced, without any expectation of securing valid convictions, as part of a plan to employ arrests, seizures and threats of prosecution in order to discourage plaintiffs from engaging in civil rights activities. The Court held that, particularly where threatened prosecutions may inhibit the full exercise of First Amendment freedoms, injunctive relief is appropriate to terminate such bad faith activity on the part of law enforcement officials. 380 U.S. at 490-92, 85 S.Ct. 1116. Numerous other courts have agreed that an injunction should issue where a statute is used for the purpose of discouraging protected activities. E. g., Thomie v. Dennard, 459 F.2d 1037 (5th Cir. 1972); Stamler v. Willis, 415 F.2d 1365, 1369 (7th Cir. 1969), cert. denied, 399 U.S. 929, 90 S.Ct. 2231, 26 L.Ed.2d 796 (1970); Gardner v. Ceci, 312 F.Supp. 516, 519 (E.D.Wis.1970). In the area of sexually oriented literature and films, state prosecuting authorities may vigorously enforce obscenity laws when the purpose is to punish the promotion or sale of obscene material, or to deter such promotion or sale. However, such law enforcement will run afoul of the Constitution if its purpose is to force a sexually oriented enterprise to cease doing business or to refrain from dealing in presumably protected sexually oriented materials. In those circumstances such activity constitutes an invalid restraint on First Amendment rights. For this reason, the court in Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972), granted an injunction against pending and future prosecutions. Plaintiffs, “adult” bookstore owners and employees, had been the subject of more than 100 prosecutions within a two-year" }, { "docid": "23624992", "title": "", "text": "difficulty in finding that an employee’s deliberate promotion of and participation in a massive and prolonged disruption of the telephone communication system of a very large departmental office is “hard core” conduct which any reasonable person must know would be cause for discipline or dismissal from employment whether described in a rule or not. Id. at 1193. Accordingly, the court held that the plaintiff did not have standing to challenge the rule for vagueness. Although not proscribed in specific terms by the Fire Bureau Rules, we agree with the district court that Aiello’s conduct on the evening of January 30, 1973, was also hardcore conduct plainly within the scope of those rules. Aiello’s argument that his entry into the record store was unintentional and therefore not “hard core” is without merit. Any reasonable person should have known that breaking and entering into a private establishment was within the reach of the regulations. Even though his drunken state may have affected the mens rea necessary to classify his conduct as criminal, it does not deprive the City of the right to levy sanctions against employees who engage in such conduct. We therefore sustain the district court’s holding that Aiello’s conduct on the evening of January 30,1973, was within the scope of the Bureau of Fire regulations and, thus, those rules were not vague as applied to him. III. Aiello also contends that Rules 169.16 and 169.23 are unconstitutionally overbroad. Although challenges for vagueness may not be asserted vicariously, the Supreme Court has “consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). See Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940). The rationale permitting such a liberalized rule for standing in the first amendment overbreadth context is the very real concern that, in a democratic society, “the possible harm ... in permitting some unprotected speech" }, { "docid": "23624993", "title": "", "text": "City of the right to levy sanctions against employees who engage in such conduct. We therefore sustain the district court’s holding that Aiello’s conduct on the evening of January 30,1973, was within the scope of the Bureau of Fire regulations and, thus, those rules were not vague as applied to him. III. Aiello also contends that Rules 169.16 and 169.23 are unconstitutionally overbroad. Although challenges for vagueness may not be asserted vicariously, the Supreme Court has “consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). See Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940). The rationale permitting such a liberalized rule for standing in the first amendment overbreadth context is the very real concern that, in a democratic society, “the possible harm ... in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Litigants, therefore, may “challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. Because invalidation for facial over-breadth is “strong medicine,” there are nonetheless limits to its application. The standards for the use of the facial over-breadth doctrine were set forth by the Supreme Court in Broadrick v. Oklahoma, supra. There, three employees of the State of Oklahoma were charged with violations of a state law which, like the federal Hatch Act, restricted the political activities of state employees. Although conceding that the statute was constitutional as applied to their own conduct, the employees nevertheless argued" }, { "docid": "1153954", "title": "", "text": "of per se unconstitutionality. Laws invalidated on this basis fail to define a “central core of constitutionally regulable conduct.” New York v. Ferber, 458 U.S. at 771 n. 26, 102 S.Ct. at 3362 n. 26; Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563-64, 41 L.Ed.2d 439 (1974); CSC v. Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2897-98, 37 L.Ed.2d 796 (1973). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). An ordinance may also be constitutionally invalid on its face if it is written so broadly that it may inhibit — have a “chilling effect” on — the protected speech of third parties. Taxpayers for Vincent, 466 U.S. at 796, 104 S.Ct. at 2124; Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-42, 84 L.Ed. 1093 (1940). This form of the overbreadth doctrine — the “classic” form of the doctrine — relaxes ordinary standing rules by permitting parties to raise the rights of third parties not before the court. Though the Court has cautioned that constitutionally invalid over-breadth must be “substantial” where conduct and not merely speech is involved, and that the doctrine itself should be invoked “only as a last resort,” Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. at 2916, the Court has often invalidated statutes on the basis of this doctrine. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965). See generally Monaghan, Over-breadth, 1981 S.CtRev. 1. These two types of facial challenges to the constitutionality of legislative enactments are often conflated. “ ‘[OJver-breadth’ is not used only to describe the doctrine that allows a litigant whose own conduct is unprotected to assert the rights of third parties to challenge a statute, even though as applied to him the statute would be constitutional. ‘Overbreadth’ has also been used to describe a challenge to a statute that in all" } ]

[ { "docid": "14769343", "title": "", "text": "by federal labor-contract law.” Id. (citation omitted). In Allis-Chalmers, the alleged state-law tort arose from the terms of the collective bargaining agreement, and its adjudication would have required reference to the provisions of that agreement. Bale and Fife urge that their state tort claims do riot arise from interpretation of the collective bargaining agreement, but rather from representations outside of and unrelated to that relationship. We cannot agree that Bale’s and Fife’s claims are sufficiently removed from the collective bargaining agreement to fall outside the preemptive ambit of section 301. We have never hesitated to find preemption of ostensible “tort” claims where those claims appeared to restate what in essence amounted to a contract claim. See, e.g., Olguin, 740 F.2d at 1474-76; Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). Allis-Chalmers makes clear that “the pre-emptive effect of § 301 must extend beyond suits alleging contract violations,” 105 S.Ct. at 1911, to encompass suits under state tort law that “would frustrate the federal labor-contract scheme established in § 301.” Id. at 1910. Bale’s and Fife’s state tort claims are preempted by section 301 since they “arose out of the same acts and conduct which formed the basis of” their section 301 claim. Carter v. Smith Food King, 765 F.2d 916, 921 (9th Cir.1985). Here, as in Allis-Chalmers, adjudication of their state tort claims would require reference to, and interpretation of, the terms of the collective bargaining agreement. In order to prove their fraud and negligent misrepresentation claims, Bale and Fife would be required to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made. Resolution of their state tort claims is therefore “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” Allis-Chalmers, 105 S.Ct. at 1916; see Evangelista v. Inlandboatmen’s Union, 777 F.2d 1390, 1400-01 (9th Cir.1985); Olguin, 740 F.2d at 1474. Because we have determined that section 301 preempts Bale’s and Fife’s state tort" } ]

[ { "docid": "8435506", "title": "", "text": "procedures and provides that disputes under the agreement will be resolved under the CBA’s grievance procedure. Thus, determining whether a breach of the settlément agreement occurred would necessarily “require[ ] the interpretation of [the CBA].” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Moreover, the subject matter of the settlement agreement—Class B longshore positions—is covered by the CBA. We have previously held that where the position in dispute is “covered by the CBA, the CBA controls and any claims seeking to enforce the terms of [an agreement] are preempted.” Beals v. Kiewit Pac. Co. Iota, 114 F.3d 892, 894 (9th Cir.1997). See also Young, 830 F.2d at 997-98 (alleged oral contract between employee and employer regarding reinstatement controlled by CBA since employee held position covered by collective bargaining agreement); Stallcop 820 F.2d at 1048 (alleged oral agreement made by employer in connection with employee’s reinstatement was only effective as part of the collective bargaining agreement). For the same reasons, plaintiffs’ state law claim for breach of the implied covenant of good faith and fair dealing is preempted. This covenant “derives from the contract [and] is defined by the contractual obligation of good faith,” and therefore are preempted to the same extent the breach of contract claim is. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 218, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); see also Schlacter-Jones v. General Tel. of Cal., 936 F.2d 435, 440 (9th Cir.1991) (holding claim for breach of implied covenant of good faith and fair dealing preempted by § 301); Young, 830 F.2d at 999-1000 (same). B. Promissory Estoppel Plaintiffs’ second cause of action is founded on promissory estoppel. But it alleges no more than that plaintiffs relied on the written settlement agreement. On appeal, plaintiffs proffer no argument that the promissory estoppel claim is subject to a different analysis than the contract claim. Hence, it is preempted for the same reasons. C. Breach of Fiduciary Duties Plaintiffs’ third cause of action alleges that “Defendants, because of their unique position and relationship to the Plaintiffs, and" }, { "docid": "2497638", "title": "", "text": "and where such intention is absent, there is an implied misrepresentation of fact, which is actionable fraud.” 5 B. Witken, Summary of California Law § 685 (9th ed. 1988). This claim presents a somewhat closer question, but we conclude that Melanson cannot prove the elements of this claim without reference to the CBA or to conduct governed by the CBA and its grievance machinery. It is true that the representations United made to Melanson and her reliance on those representations can be established without reference to the CBA. But as a practical matter, proof of United’s intent not to perform and its nonperformance lead inevitably to the CBA. The weight standards that United enforced are incorporated into the CBA. That enforcement constituted the repudiation of United’s alleged promise to Melanson, and it is that repudiation that permits the trier of fact to infer that United never intended to perform its promise to Melanson. “The subsequent repudiation relates back to the original promise.” Cicone v. URS Corp., 183 Cal.App.3d 194, 203, 227 Cal.Rptr. 887, 892 (1986). If the CBA in fact guaranteed Melanson an exemption from the weight requirements, her claim would clearly be affected, if not defeated. Her claim can scarcely be litigated without reference to the CBA. All three of Melanson’s state law claims would intrude, then, upon the collective bargaining system established by Congress under the RLA. Even under the narrower preemption test of section 301, we held similar claims preempted in Bale v. General Telephone Co. of California, 795 F.2d 775 (9th Cir.1986). There, two workers claimed fraud and misrepresentation by the employer in representing that they, as temporary employees, would obtain permanent status after six months, when the CBA provided otherwise. We said: In order to prove their fraud and negligent misrepresentation claims, [plaintiffs] would be required to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made. Resolution of their state tort claims is therefore “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” Id." }, { "docid": "22251286", "title": "", "text": "claim because the covenant is an aspect of the collective agreement and is subject to waiver). Precluding waiver of the implied covenant might lead to an incongruous result. Discharged probationary employees could seek recovery of emotional distress and other compensatory damages, as well as punitive damages, for breach of the implied covenant. Other employees — subject to discharge only for good cause under a collective bargaining agreement — would be limited to their contractual remedies. Probationary employees might therefore effectively enjoy greater job security than their more senior coworkers. We accordingly hold that a union can waive the right of a probationary employee to the protection of California’s implied covenant tort. Since Young was covered by the CBA, her implied covenant claim was preempted by section 301 even though she may have no comparable employment protection under the CBA. B. Fraud and Misrepresentation Young urges that her state tort claims for fraud and negligent misrepresentation do not arise from interpretation of the CBA, but rather from oral representations made in connection with her reinstatement. She alleges that Anthony’s falsely represented that she could be discharged only for good cause. As in Allis-Chalmers, however, determining Young’s misrepresentation claims would require interpretation of the collective agreement. In order to prove misrepresentation, Young would be required to show that the terms of the CBA differed significantly from the terms of the individual contract. As resolution of her misrepresentation claims would substantially depend on interpretation of the terms of the CBA, the claims are preempted. Stallcop, 820 F.2d at 1049; Bale, 795 F.2d at 779-80 C. Wrongful Discharge in Violation of Public Policy Young alleges a claim for wrongful termination in violation of public policy under Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980). She claims that her discharge was contrary to a California public policy protecting her efforts to organize Anthony’s employees in opposition to an IRS tip audit. Section 301 does not preempt every public policy claim brought by an employee covered by a collective bargaining agreement. Thus, a claim is not preempted if it" }, { "docid": "5364015", "title": "", "text": "Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285-86 (9th Cir.1989); Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 997-98 (9th Cir.1987); Stallcop v. Kaiser Foundation Hosps., 820 F.2d 1044, 1048 (9th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987); Bale v. General Tel. Co. of Cal., 795 F.2d 775, 779 (9th Cir. 1986); Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1474 (9th Cir.1984). The reason for this rule is that “any ‘independent agreement of employment [concerning that job position] could be effective only as part of the collective bargaining agreement,’ [hence] the CBA controls and the contract claim is preempted.” Young, 830 F.2d at 997 (citations omitted; first brackets in original). Bloom’s position — assistant head hair stylist — is covered by a collective bargaining agreement. See Gorham Decl. [11/26/89] Exhibit A at 11-13 (collective bargaining agreement provisions concern assistant head hair stylist compensation and term of employment); Id. [1/19/90] Exhibit A at 8, 11, 12 (same). The fact that the collective bargaining agreement is unsigned is not critical. See Retail Clerks Int’l Ass’n v. Lion Dry Goods, Inc., 369 U.S. 17, 24 n. 6, 82 S.Ct. 541, 546 n. 6, 7 L.Ed.2d 503 (1962) (acknowledging viability of a collective bargaining agreement even though the parties did not negotiate directly and did not conjoin their signatures on one document); Cappa v. Wiseman, 469 F.Supp. 437, 442 (N.D.Cal.1979) (“There is no general requirement that collective bargaining agreements be in writing”). Further, Studio and the union have behaved as if the unsigned agreement is valid and effective. Gorham Decl. [1/19/90], ¶¶ 5-7. Accordingly, the Court is constrained to conclude that § 301 pre-empts Bloom’s breach of contract claim regarding Studio. Ninth Circuit law also impels the same conclusion regarding Television and Cor-dray, despite the fact that they did not sign the collective bargaining agreement. As the Circuit has explained, § 301’s applicability “is not dependent upon the parties to the suit but rather the nature or subject matter of the action. Jurisdiction exists as long as the suit is for violation of a contract" }, { "docid": "22251275", "title": "", "text": "part of the collective bargaining agreement,” the CBA controls and the contract claim is preempted. Olguin, 740 F.2d at 1474; accord Stallcop, 820 F.2d at 1048; Bale v. General Tel. Co., 795 F.2d 775, 779-80 (9th Cir.1986). By way of contrast, a breach of contract claim concerning a job not governed by a collective agreement could be effective independent of the agreement and is therefore not completely preempted. Caterpillar, Inc. v. Williams, 107 S.Ct. at 2430-32 & 2431 n. 9 (“[plaintiffs] rely on contractual agreements made while they were in managerial or weekly salaried positions — agreements in which the collective-bargaining agreement played no part”). Young’s individual contract claim is thus effectively a claim for breach of the CBA. Young argues that it would be contrary to Congress’ intent in enacting section 301 to hold preempted her state law contract claim when under the CBA she could be discharged at will. See Paige, 826 F.2d at 860-61 (essential inquiry in determining preemption is intent of Congress in enacting federal statute). Federal law, however, recognizes that a union may, in the give and take of collective bargaining, waive the employee’s contractual rights. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006, 18 L.Ed.2d 1123 (1967); Hollins v. Kaiser Found. Hosps., 727 F.2d 823, 825 (9th Cir.1984) (per curiam). Preemption of Young’s contract claim accordingly conforms to federal law. Federal law not only preempts Young’s contract claim, but also supplants it with a federal claim. Young’s individual labor contract is only enforceable under the CBA. J.I. Case Co. v. NLRB, 321 U.S. 332, 339, 64 S.Ct. 576, 581, 88 L.Ed. 762 (1944); Olguin, 740 F.2d at 1474. Young could have brought a grievance under the CBA to determine the effectiveness of her individual contract, and a federal court would therefore have jurisdiction pursuant to section 301 over her claim for breach of the CBA based on that individual contract. Her contract claim can thus be characterized as a section 301 claim and removed as completely preempted. Young argues that she had no effective federal remedy under the CBA" }, { "docid": "5364019", "title": "", "text": "decision that § 301(a) pre-empted the plaintiff’s tort claims: In order to prove their fraud and negligent misrepresentation claims, [the plaintiffs] would be required to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made. Resolution of their state tort claims is therefore ‘substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.’ Bale, 795 F.2d at 780 (citation omitted). See also Young v. Anthony’s Fish Grot tos, Inc., 830 F.2d 993, 1001 (9th Cir.1987) (§ 301 pre-empts fraud and negligent misrepresentation claims based on oral representations made in connection with employment contract). Section 301’s pre-emptive force extends also to Television and Cordray, even though they did not sign the collective bargaining agreement. Painting & Decorating Contractors Ass’n, 707 F.2d at 1071. D. The Bad Faith Claim Bloom’s third claim alleges that defendants’ acts breached the implied covenant of good faith and fair dealing. See Cmplt. ¶ 21-22. Young, 830 F.2d 993, constrains the Court to conclude that § 301(a) pre-empts this claim. In Young, the plaintiff worked for the defendant as a waitress. She organized a protest of an IRS audit of their tip income, and then quit. Eventually she returned to work; allegedly a manager promised to employ her on the same terms as before, subject to discharge for good cause only. The collective bargaining agreement provided that probationary employees — such as the plaintiff — could be discharged at will. She was fired the same day she returned. She sued, asserting breach of the covenant of good faith and fair dealing and other claims. The district court granted summary judgment for defendants; the Ninth Circuit affirmed, reasoning that The implied covenant tort is a ‘regulation of the employment relationship.’ It implicates the employee’s job security rights under the collective bargaining agreement and duplicates the protection federal labor policy posits in the collective bargaining process. It furthers no state policy independent of employment. Consequently, the implied covenant is ‘inextricably intertwined with consideration of the terms of the labor contract,’" }, { "docid": "22251287", "title": "", "text": "alleges that Anthony’s falsely represented that she could be discharged only for good cause. As in Allis-Chalmers, however, determining Young’s misrepresentation claims would require interpretation of the collective agreement. In order to prove misrepresentation, Young would be required to show that the terms of the CBA differed significantly from the terms of the individual contract. As resolution of her misrepresentation claims would substantially depend on interpretation of the terms of the CBA, the claims are preempted. Stallcop, 820 F.2d at 1049; Bale, 795 F.2d at 779-80 C. Wrongful Discharge in Violation of Public Policy Young alleges a claim for wrongful termination in violation of public policy under Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980). She claims that her discharge was contrary to a California public policy protecting her efforts to organize Anthony’s employees in opposition to an IRS tip audit. Section 301 does not preempt every public policy claim brought by an employee covered by a collective bargaining agreement. Thus, a claim is not preempted if it poses no significant threat to the collective bargaining process and furthers a state interest in protecting the public transcending the employment relationship. Garibaldi, 726 F.2d at 1373-75 (claim based upon a state “whistle-blower” statute designed to protect public health and safety not preempted); accord Paige, 826 F.2d at 863 (claim based on state statute protecting workers’ health and safety not preempted because state law benefits employees “as individual workers, not because they are or are not [union] mem bers”). A claim is preempted, however, if it is not based on any genuine state public policy, DeSoto v. Yellow Freight Sys., 820 F.2d 1434, 1437-38 (9th Cir.1987) (claim based on good faith but erroneous reliance on a state registration statute preempted), or if it is bound up with interpretation of the collective bargaining agreement and furthers no state policy independent of the employment relationship, Evangelista v. Inlandboatmen’s Union, 777 F.2d 1390, 1401 (9th Cir.1985) (claim based on public policy against harassment on the job preempted). Otherwise, virtually any wrongful discharge claim could be recast as a" }, { "docid": "17160122", "title": "", "text": "that they had expressly acceded to the CBA, which governed their job terms and layoff guidelines. We have previously held that where the position in dispute is “covered by the CBA, the CBA controls and any claims seeking to enforce the terms of [an agreement] are preempted.” Audette v. ILWU Local 24, 195 F.3d 1107, 1112 (9th Cir.1999) (quoting Beals, 114 F.3d at 894); see also Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 997-98 (9th Cir.1987) (alleged contract between employee and employer regarding reinstatement controlled by CBA because employee held position covered by CBA); Stallcop v. Kaiser Found. Hosp., 820 F.2d 1044, 1048 (9th Cir.1987) (oral agreement by employer relating to employee’s reinstatement only effective as part of the CBA). Furthermore, we have consistently held state law based contract claims arising from alleged pre-employment misrepresentations to be preempted by § 301 when the employee is subsequently hired under a CBA. “Because any ‘independent agreement of employment [concerning a job position covered by the CBA] could be effective only as part of the collective bargaining agreement,’ the CBA controls and the contract claim is preempted.” Young, 830 F.2d at 997 (quoting Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1474 (9th Cir.1984), overruled on other grounds, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)); see also Stallcop, 820 F.2d at 1048. When an independent agreement is inconsistent with the provisions of a collective bargaining agreement, the bargaining agreement controls. See Olguin, 740 F.2d at 1474. The appellants rely on the Supreme Court’s statement in Caterpillar that “individual employment contracts are not inevitably superseded by any subsequent collective bargaining agreement covering an individual employee, and claims based upon them may arise under state law.” 482 U.S. at 396, 107 S.Ct. 2425. However, Caterpillar is inapplicable under the facts of this case because the above statement addressed an individual employment contract negotiated for a position not covered by the CBA, at a time when the employee was not covered by a CBA. See id. at 388-89, 107 S.Ct. 2425. This case comes to us" }, { "docid": "5364014", "title": "", "text": "Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988) (footnote omitted); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985) (§ 301(a) pre-empts state law claims if “resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract”); Jackson v. Southern California Gas Co., 881 F.2d 638, 643 (9th Cir.1989). B. Bloom’s Breach of Contract Claim Section 301(a) pre-empts Bloom’s first claim for breach of contract. That claim alleges in substance that Bloom and Cordray contracted for Studio to employ Bloom as assistant head hair stylist for thirteen remuneration periods— i.e., thirteen episodes plus a four-week “hiatus” — at a specified compensation, but that her employment was terminated after only two remuneration periods. The Ninth Circuit has explained numerous times that § 301(a) pre-empts state law breach of contract claims involving job positions covered by the collective bargaining agreement. See, e.g., Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285-86 (9th Cir.1989); Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 997-98 (9th Cir.1987); Stallcop v. Kaiser Foundation Hosps., 820 F.2d 1044, 1048 (9th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987); Bale v. General Tel. Co. of Cal., 795 F.2d 775, 779 (9th Cir. 1986); Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1474 (9th Cir.1984). The reason for this rule is that “any ‘independent agreement of employment [concerning that job position] could be effective only as part of the collective bargaining agreement,’ [hence] the CBA controls and the contract claim is preempted.” Young, 830 F.2d at 997 (citations omitted; first brackets in original). Bloom’s position — assistant head hair stylist — is covered by a collective bargaining agreement. See Gorham Decl. [11/26/89] Exhibit A at 11-13 (collective bargaining agreement provisions concern assistant head hair stylist compensation and term of employment); Id. [1/19/90] Exhibit A at 8, 11, 12 (same). The fact that the collective bargaining agreement is unsigned is" }, { "docid": "17160124", "title": "", "text": "in a significantly different posture. The appellants’ positions were at all times bargaining unit positions and the appellants, though not covered by a CBA at the time the alleged promise was made, had expressly acceded to the CBA by the time of their own layoff. See Young, 830 F.2d at 998-99 (distinguishing Caterpillar because Caterpillar involved breach of contract claim concerning job not governed by CBA); Stallcop, 820 F.2d at 1048-49 (same). Thus, Caterpillar’s reasoning does not apply to exempt the appellants’ claim from § 301 preemption. Given that Pirelli acted in accordance with its contractual duties under the CBA when it laid off the appellants and these duties are allegedly inconsistent with the appellants’ individual employment contracts, the CBA’s terms control. See Olguin, 740 F.2d at 1474. Though appellants attempt to isolate their rights under their pre-CBA individual contracts from their CBA-governed layoff, we decline to bifurcate the analysis in this manner. Accordingly, we conclude that the appellants’ breach of contract claims cannot be resolved without interpreting the layoff and seniority provisions of the 1995 CBA and are thus preempted by § 301 of the FLMA. (ii) Fraud claim As a threshold matter wé note that although the language of § 301 is limited to “[s]uits for violation of contracts,” it has been broadly construed to cover most state-law actions that require interpretation of labor agreements. 29 U.S.C. § 185(a); see Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. 1904 (“[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim, or dismissed as preempted by federal labor-contract law.”) (internal citations omitted). Therefore, section 301’s preemptive force extends to fraud claims when resolution of the claims is inextricably intertwined with terms in a labor contract. See Bale v. General Telephone Co., 795 F.2d 775, 779-80 (9th Cir.1986). Whether the appellants’ fraud claims are preempted depends on whether resolution of the claims would require an interpretation of the terms of the CBA. See Lingle, 486 U.S." }, { "docid": "5364017", "title": "", "text": "between a union and an employer even if neither party is a union or an employer.” Painting & Decorating Contractors Ass’n of Sacramento, Inc. v. Painters & Decorators Joint Comm. of the East Bay Counties, Inc., 707 F.2d 1067, 1071 (9th Cir.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1709, 80 L.Ed.2d 182 (citation and quotation omitted). Thus, in Painting & Decorating Contractors Ass’n the Court concluded § 301 jurisdiction existed against an entity not a signatory to the collective bargaining agreement. At the hearing on defendant’s summary judgment motion, plaintiff’s counsel argued that § 301 should not pre-empt her claim against Television, because Television was not a party to the collective bargaining agreement. The Court rejects this argument. It is undisputed that Television was a division of Studio. See Complt., ¶ 2 and Complt., Exhibit “A”. Accordingly, Television is bound by an agreement entered into by Studio. Once § 301 jurisdiction is present, its “preemptive force ... is so powerful as to displace entirely any state cause of action for violation of a collective bargaining agreement.” Stallcop, 820 F.2d at 1048 (footnote omitted). Section 301 pre-empts Bloom’s breach of contract claim against all defendants. C. Bloom’s Misrepresentation and Deceit Claim In her second claim Bloom alleges in substance that defendants made pre-contract misrepresentations to Bloom that were inconsistent with the production notice and collective bargaining agreement, and which defendants refused to honor. See Cmplt. ¶¶ 12-19. Resolution of this claim is substantially dependent upon analysis of the terms of the collective bargaining agreement; accordingly, § 301(a) pre-empts this claim. Bale v. General Telephone Co. of Cal., 795 F.2d 775 (9th Cir.1986), is dispositive. In Bale the plaintiffs alleged that they were told at the time of hiring that they would serve as “temporary” employees for six months, after which they would become permanent employees. (Permanent employees could be discharged only for cause and only pursuant to collective bargaining agreement procedures.) After six months, the plaintiffs were not made permanent employees, and were discharged. They sued for, inter alia, fraud and negligent misrepresentation. The Ninth Circuit upheld the district court’s" }, { "docid": "2497639", "title": "", "text": "If the CBA in fact guaranteed Melanson an exemption from the weight requirements, her claim would clearly be affected, if not defeated. Her claim can scarcely be litigated without reference to the CBA. All three of Melanson’s state law claims would intrude, then, upon the collective bargaining system established by Congress under the RLA. Even under the narrower preemption test of section 301, we held similar claims preempted in Bale v. General Telephone Co. of California, 795 F.2d 775 (9th Cir.1986). There, two workers claimed fraud and misrepresentation by the employer in representing that they, as temporary employees, would obtain permanent status after six months, when the CBA provided otherwise. We said: In order to prove their fraud and negligent misrepresentation claims, [plaintiffs] would be required to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made. Resolution of their state tort claims is therefore “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” Id. at 780 (quoting Allis-Chalmers v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1915, 85 L.Ed.2d 206 (1985)). The same considerations compel preemption here, even more strongly. The entire “minor dispute” resolution system of the RLA was intended to provide prompt resolution, without resort to the courts, of disputes arising out of the employment relation. Edelman, 892 F.2d at 843, 45 U.S.C. § 151a. Melanson’s claims are encompassed by that purpose. CONCLUSION The district court properly held that Me-lanson’s state law claims are preempted by the RLA. We therefore affirm the judgment. AFFIRMED. . This reasoning is not limited to contract claims. Nearly any contract claim can be restated as a tort claim. The RLA's grievance procedure would become obsolete if it could be circumscribed by artful pleading. See Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). . Melanson also contends that the CBA did not apply to her at the time of the alleged misrepresentation because the AFA did" }, { "docid": "17160127", "title": "", "text": "again argue against preemption by contending that their fraud claim was fully actuated before the existence of the 1995 CBA and does not depend on any rights created by the CBA. They maintain that the March 1995 layoff of other replacements evidenced Pirelli’s intention not to honor its promise to appellants that no replacement would be replaced by a returning striker. However, as outlined above, this construction of the alleged promise is merely a restatement of a traditional third party beneficiary theory and untenable under the facts of this case. Therefore, whatever promise Pirelli made to appellants regarding permanency, Pirel-li’s intent not to honor the promise could only have become known to appellants when they were laid off in September 1995. As noted above, the appellants were laid off pursuant to the layoff and seniority provisions of the 1995 CBA, which validly governed their employment. The 1995 CBA is where Pirelli’s alleged fraud becomes evident because it is in the CBA that Pirelli negotiated the return of strikers and the seniority/layoff provisions for all bargaining unit employees, including the appellants. Since these seniority terms, which placed returning strikers above the appellants in seniority, are what caused appellants’ alleged harm, interpretation of the CBA is vital to resolution of the fraud claim. In this case, like in Bale, there is no way to assess the alleged misrepresentation without examining the instrument that has been misrepresented, the CBA. See Bale, 795 F.2d at 780. The appellants would be required to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made. Resolution of their fraud claims is therefore “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” See id. (citing Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. 1904) (other citations omitted). Beals v. Kiewit Pacific Co., 114 F.3d 892 (9th Cir.1997) is not to the contrary. In Beals, the employee had been induced to move to Hawaii by an individual employment contract and later became part of the collective bargaining unit and subject" }, { "docid": "17160117", "title": "", "text": "were barred by the applicable statute of limitations or otherwise lacked merit. This appeal, in which the appellants abandoned the negligent misrepresentation claims, followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. II STANDARD OF REVIEW We review a grant of summary judgment de novo and we will affirm only if, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the trial court correctly applied the substantive law. See Robi v. Reed, 173 F.3d 736, 739 (9th Cir.1999). The district court’s decision regarding preemption is reviewed de novo. See Niehaus v. Greyhound Lines Inc., 173 F.3d 1207, 1211 (9th Cir.1999). III DISCUSSION (A) Section 301 Preemption Section 301 of the LMRA preempts state law claims that are based directly on rights created by a collective bargaining agreement, and also preempts claims that are substantially dependent on an interpretation of a collective bargaining agreement. See Beals v. Kiewit Pacific Co., Inc., 114 F.3d 892, 894 (9th Cir.1997) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). When the meaning of particular contract terms is not disputed, however, the fact that a collective bargaining agreement must be consulted for information will not result in § 301 preemption. See Livadas v. Bradshaw, 512 U.S. 107, 123-24, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (citing Lingle v. Norge Div. Of Magic Chef, Inc., 486 U.S. 399, 413 n. 12, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)). The appellants argue that the terms of their CBA are neither disputed nor relevant because their claims were fully actuated before the existence of the CBA and consequently fall outside the orbit of § 301 preemption. Pirelli counters that preemption is necessary because the appellants were laid off pursuant to the layoff and seniority provisions of the CBA and interpretation of the CBA’s terms is integral to resolution of those claims. For the following reasons, we agree with Pirelli, and conclude that both the breach of contract and fraud claims are preempted by § 301." }, { "docid": "5364018", "title": "", "text": "bargaining agreement.” Stallcop, 820 F.2d at 1048 (footnote omitted). Section 301 pre-empts Bloom’s breach of contract claim against all defendants. C. Bloom’s Misrepresentation and Deceit Claim In her second claim Bloom alleges in substance that defendants made pre-contract misrepresentations to Bloom that were inconsistent with the production notice and collective bargaining agreement, and which defendants refused to honor. See Cmplt. ¶¶ 12-19. Resolution of this claim is substantially dependent upon analysis of the terms of the collective bargaining agreement; accordingly, § 301(a) pre-empts this claim. Bale v. General Telephone Co. of Cal., 795 F.2d 775 (9th Cir.1986), is dispositive. In Bale the plaintiffs alleged that they were told at the time of hiring that they would serve as “temporary” employees for six months, after which they would become permanent employees. (Permanent employees could be discharged only for cause and only pursuant to collective bargaining agreement procedures.) After six months, the plaintiffs were not made permanent employees, and were discharged. They sued for, inter alia, fraud and negligent misrepresentation. The Ninth Circuit upheld the district court’s decision that § 301(a) pre-empted the plaintiff’s tort claims: In order to prove their fraud and negligent misrepresentation claims, [the plaintiffs] would be required to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made. Resolution of their state tort claims is therefore ‘substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.’ Bale, 795 F.2d at 780 (citation omitted). See also Young v. Anthony’s Fish Grot tos, Inc., 830 F.2d 993, 1001 (9th Cir.1987) (§ 301 pre-empts fraud and negligent misrepresentation claims based on oral representations made in connection with employment contract). Section 301’s pre-emptive force extends also to Television and Cordray, even though they did not sign the collective bargaining agreement. Painting & Decorating Contractors Ass’n, 707 F.2d at 1071. D. The Bad Faith Claim Bloom’s third claim alleges that defendants’ acts breached the implied covenant of good faith and fair dealing. See Cmplt. ¶ 21-22. Young, 830 F.2d 993, constrains the Court to" }, { "docid": "23618078", "title": "", "text": "Copper Co., 740 F.2d 1468 (9th Cir.1984), in which the court found preempted state claims for breach of contract, wrongful discharge, wrongful discharge in violation of public policy, and intentional infliction of emotional distress. This case is not relevant for two reasons. First, none of the preempted claims in Ol-guin was based on a state tort that relied on a standard articulated by the courts without reference to a collective bargaining agreement. Second, the case was decided before Allis-Chalmers, and therefore did not apply the “inextricably intertwined” test. It is no longer binding precedent. See Vincent v. Trend Western Technical Corp., 828 F.2d 563, 565-56 (9th Cir.1987). For the same reasons, appellee’s reliance on Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978), is not appropriate. Appellees finally rely on Bale v. General Telephone Co., 795 F.2d 775 (9th Cir.1986). In Bale, we found state-law fraud and misrepresentation actions preempted because, to prove fraud, the plaintiffs would have needed “to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made.” Id. at 780. We concluded that the state-law claims were inextricably intertwined with the terms of the labor contract. This state tort does not require a comparison of the discharge provisions of the CBA with the requirements of the statute. It requires only a showing that there is no probability that Miller cannot do the job satisfactorily or that he can do so only at the risk of incapacitating himself. See Montgomery Ward, 570 P.2d at 79. We therefore conclude that Oregon’s antidis- crimination statute articulates an independent standard that is not inextricably intertwined with the interpretation of terms in the CBA. We also find that Oregon’s antidiscrim-ination right is nonnegotiable. The statute is based on a declared policy of guaranteeing to all “handicapped persons the fullest possible participation in ... remunerative employment ... without discrimination.” O.R.S. § 659.405(1). Oregon has decided that “employment without discrimination because of handicap ... [is] declared to be the right[]" }, { "docid": "17160128", "title": "", "text": "unit employees, including the appellants. Since these seniority terms, which placed returning strikers above the appellants in seniority, are what caused appellants’ alleged harm, interpretation of the CBA is vital to resolution of the fraud claim. In this case, like in Bale, there is no way to assess the alleged misrepresentation without examining the instrument that has been misrepresented, the CBA. See Bale, 795 F.2d at 780. The appellants would be required to show that the terms of the collective bargaining agreement differed significantly from the individual employment contracts they believed they had made. Resolution of their fraud claims is therefore “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” See id. (citing Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. 1904) (other citations omitted). Beals v. Kiewit Pacific Co., 114 F.3d 892 (9th Cir.1997) is not to the contrary. In Beals, the employee had been induced to move to Hawaii by an individual employment contract and later became part of the collective bargaining unit and subject to a valid CBA. Sometime after his move, Beals was discharged in accordance with the CBA but in violation of his independent contract. Though we concluded that Beals’s breach of contract and tortious interference with contract claims were preempted by § 301, we held that his negligent misrepresentation claim was not. See id., at 895. In order to prove negligent misrepresentation under Hawaii law, Beals had to show that (1) Kiewit failed to exercise reasonable care in communicating false information to Beals, and (2) Beals justifiably relied on that information. See id. Since the second prong of the test was solely dependent on Beals’ state of mind, Beals did not have to rely on the CBA to prove his claim. Accordingly, the claim did not require an interpretation of the CBA and was not preempted by § 301. See id. In contrast, though both the negligent misrepresentation claim in Beals and the fraud claim in the instant case contain a scienter element, the appellants’ fraud claims require an examination of Pirelli’s intent to defraud. Proof" }, { "docid": "8435505", "title": "", "text": "in the Voluntary Travel provision of the CBA as a “ruse” to oppose B registration and because Huntsman was never informed of defendants’ failure to require a request for a B registration. Although the settlement agreement does not settle a grievance that arose under the CBA, cf. Jones v. General Motors Corp., 939 F.2d 380, 382-83 (6th Cir.1991), and Davis v. Bell Atlantic-West Virginia, Inc., 110 F.3d 245, 248-49 (4th Cir.1997), its performance implicates various provisions of the CBA. The settlement agreement provides specifically that defendants may produce “non-discriminatory, legitimate, business justification why B registration should not take place.” Determining whether such justification exists would necessarily implicate provisions of the CBA, such as provisions for the expansion of the Voluntary Travel provision under the CBA (as the complaint itself indicates), the policy of transferring workers from Limited Work Opportunity ports, and the authority of the JPLRC under the CBA to limit the number of workers in each category to conform to the volume of available work. Indeed, the settlement agreement specifically refers to CBA registration procedures and provides that disputes under the agreement will be resolved under the CBA’s grievance procedure. Thus, determining whether a breach of the settlément agreement occurred would necessarily “require[ ] the interpretation of [the CBA].” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Moreover, the subject matter of the settlement agreement—Class B longshore positions—is covered by the CBA. We have previously held that where the position in dispute is “covered by the CBA, the CBA controls and any claims seeking to enforce the terms of [an agreement] are preempted.” Beals v. Kiewit Pac. Co. Iota, 114 F.3d 892, 894 (9th Cir.1997). See also Young, 830 F.2d at 997-98 (alleged oral contract between employee and employer regarding reinstatement controlled by CBA since employee held position covered by collective bargaining agreement); Stallcop 820 F.2d at 1048 (alleged oral agreement made by employer in connection with employee’s reinstatement was only effective as part of the collective bargaining agreement). For the same reasons, plaintiffs’ state law claim for" }, { "docid": "17160121", "title": "", "text": "in March 1995, appellants ask us to recognize a “fear of future layoff’ as an actionable injury. We decline to do so. See Buttram v. Owens-Corning Fiberglas Corp., 16 Cal.4th 520, 531 n. 4, 66 Cal.Rptr.2d 438, 941 P.2d 71 (1997) (“[T]o be actionable, harm must constitute something more than nominal damages, speculative harm, or the threat of future harm-not yet realized ... ”) (internal quotation marks and citations omitted). Appellants cannot otherwise show how they were damaged by the March 1995 layoff of other replacements except to point to their own layoff in September 1995. Consequently, appellants did not suffer harm until their own layoff in September 1995, and whatever breach occurred, it occurred on that date. Given this conclusion, we must now decide whether resolution of the appellants’ breach of contract claims requires an interpretation of the terms and provisions of the 1995 CBA. Appellants concede that at the time of their September 1995 layoff, they were part of the bargaining unit whose positions were covered by the 1995 CBA. They also acknowledge that they had expressly acceded to the CBA, which governed their job terms and layoff guidelines. We have previously held that where the position in dispute is “covered by the CBA, the CBA controls and any claims seeking to enforce the terms of [an agreement] are preempted.” Audette v. ILWU Local 24, 195 F.3d 1107, 1112 (9th Cir.1999) (quoting Beals, 114 F.3d at 894); see also Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 997-98 (9th Cir.1987) (alleged contract between employee and employer regarding reinstatement controlled by CBA because employee held position covered by CBA); Stallcop v. Kaiser Found. Hosp., 820 F.2d 1044, 1048 (9th Cir.1987) (oral agreement by employer relating to employee’s reinstatement only effective as part of the CBA). Furthermore, we have consistently held state law based contract claims arising from alleged pre-employment misrepresentations to be preempted by § 301 when the employee is subsequently hired under a CBA. “Because any ‘independent agreement of employment [concerning a job position covered by the CBA] could be effective only as part of the collective" }, { "docid": "22251274", "title": "", "text": "740 F.2d 1468, 1473 (9th Cir.1984). Section 301(a) provides federal jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a) (1982). A suit for breach of a collective bargaining agreement is governed exclusively by federal law under section 301. Franchise Tax, 463 U.S. at 23, 103 S.Ct. at 2853-54. The preemptive force of section 301 is so powerful as to displace entirely any state claim based on a collective bargaining agreement, id., and any state claim whose outcome depends on analysis of the terms of the agreement, IBEW v. Heckler, —U.S.-, 107 S.Ct. 2161, 2166, 95 L.Ed.2d 791 (1987); Stallcop v. Kaiser Foundation Hosps., 820 F.2d 1044, 1048 (9th Cir.1987). Young contends that her individual labor contract is independent of the CBA and that her contract claim is thus not a claim for breach of the CBA. The subject matter of her contract, however, is a job position covered by the CBA. Because any “independent agreement of employment [concerning that job position] could be effective only as part of the collective bargaining agreement,” the CBA controls and the contract claim is preempted. Olguin, 740 F.2d at 1474; accord Stallcop, 820 F.2d at 1048; Bale v. General Tel. Co., 795 F.2d 775, 779-80 (9th Cir.1986). By way of contrast, a breach of contract claim concerning a job not governed by a collective agreement could be effective independent of the agreement and is therefore not completely preempted. Caterpillar, Inc. v. Williams, 107 S.Ct. at 2430-32 & 2431 n. 9 (“[plaintiffs] rely on contractual agreements made while they were in managerial or weekly salaried positions — agreements in which the collective-bargaining agreement played no part”). Young’s individual contract claim is thus effectively a claim for breach of the CBA. Young argues that it would be contrary to Congress’ intent in enacting section 301 to hold preempted her state law contract claim when under the CBA she could be discharged at will. See Paige, 826 F.2d at 860-61 (essential inquiry in determining preemption is intent of Congress in enacting federal statute). Federal law, however, recognizes that" } ]

[ { "docid": "19126229", "title": "", "text": "the statute appears to suggest a lower threshold of evidence as the moving party would not have to overcome the burden of the bad faith presumption by ‘clear and convincing evidence.’ ”); (See Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802 (4th Cir.1992), for discussion of the three recognized standards of proof). The existence of a presumption means that if the movant comes forward with no evidence, the motion to extend must be denied. See Fed.R.Evid. 301. In order to prevail the movant, given the heightened standard of proof, must do more than merely tip the scales in his favor. Indeed, for the presumption and standard of proof to have meaning the movant must produce evidence sufficient to tilt the balance decidedly in his favor. The presumption of bad faith under § 362(c)(3)(C)® can arise as to all creditors in one of three ways. The first two (i.e., subsections (I) and (II)) are historical inquires while the third (i.e., subsection (III)) examines the present and future circumstances of the debtor. In re Mark, 336 B.R. 260 (Bankr.D.Md.2006). Section 362(c)(3)(C)(i)(I) creates a presumption of bad faith when, (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; The presumption of bad faith arises if, in addition to the current case, two or more previous cases were pending within the previous year. Contrast this with § 362(c)(4), which requires that “2 or more” pending cases be dismissed while subsection (I) requires only that there was “more than 1” case pending within the preceding year. Section 362(c)(3)(C)(i)(II) gives rise to a presumption of bad faith if one of the enumerated failures occurred in the prior case. It states that a presumption arises when in, (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to— (aa) file or amend the petition or other documents as required by this title or the court without substantial" } ]

[ { "docid": "6534532", "title": "", "text": "pending during the previous year; (ii) a case pending within the previous year was dismissed for failure to file certain required documents, provide adequate protection, or- perform under a confirmed plan; or (iii) there has not been a substantial change in the financial or personal affairs of the debtor since the most recent case was dismissed or there is no other reason to determine that the new case will result in a discharge. 11 U.S.C. § 362(c)(3)(C)(i). A case is further presumed to not be filed in good faith as to any creditor that sought relief from the stay in a previous case if upon dismissal of the previous case the stay relief motion was still pending or the action had been resolved by terminating, conditioning, or limiting the stay as to the actions of the creditor. § 362(c)(3)(C)(ii). Under § 362(c)(3)(B), a debtor may only rebut the presumption that a case is not filed in good faith “by clear and convincing evidence to the contrary.” 11 U.S.C. § 362(c)(3)(B). The clear and convincing standard only arises if there is a presumption (based on one of the foregoing factors) that the case was not filed in good faith. The statute does not address what standard of proof applies in determining whether one of the presumption factors exists and the statute does not address which party has the burden of proof with respect to the presumption factors. Absent a statute or rule to the contrary, the burden of proof in a bankruptcy case is by a preponderance of the evidence. See, e.g., In re Keaty, 397 F.3d 264, 270 (5th Cir.2005) (burden of proving nondischargeability by preponderance of evidence); In re Briscoe Enters., Ltd., II, 994 F.2d 1160, 1165 (5th Cir.1993) (debtor must prove plan’s feasibility and fairness by preponderance of evidence for cramdown provisions to apply). Inasmuch as the statute does not dictate an alternate standard, the Court requires proof by a preponderance of the evidence to determine if the presumption against Ms. Charles arises. The first factor that can lead to a presumption that a case is not filed" }, { "docid": "20619735", "title": "", "text": "purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)— (i) as to all creditors, if— (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to— (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III)there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded— (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and (ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor!.] (emphasis added). The “subsection (a)” referred to in section 362(c)(3)(A) is section 362(a). Subsection (a) sets forth the range of the automatic stay. Subsection (b) identifies exceptions to the reach of subsection (a). Subsection (c) lists the circumstances in which the bankruptcy stay either terminates or does not arise without the necessity of a court order to that effect. In interpreting section 362(c)(3)(A), a number" }, { "docid": "11101832", "title": "", "text": "A party in interest may move the Court to extend the automatic stay past 30 days “as to any or all creditors after notice and a hearing” if the party in interest demonstrates that the present case was filed in good faith “as to the creditors to be stayed.” Under 362(c)(3)(C)(i), a presumption arises that the present case was not filed in good faith as to all creditors if- “(I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to- (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later ease will be concluded- (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed...” If the § 362(c)(3)(C) presumption (“the presumption”) does arise, the party in interest moving to extend the automatic stay must carry its burden by clear and convincing evidence. The code does not specify what standard of proof applies if the presumption does not arise. The default standard of proof in a bankruptcy case is by a “preponderance of the evidence.” In the absence of an indication otherwise, the court will require that a party carry its burden of proof by a preponderance of the evidence." }, { "docid": "7907860", "title": "", "text": "in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and (ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor. If the Court finds that a later case is “presumptively filed not in good faith” under § 362(c)(3)(C), the presumption must be rebutted by clear and convincing evidence. In re Kurtzahn, 337 B.R. 356, 363-64 (Bankr.D.Minn.2006); In re Collins, 335 B.R. 646, 651 (Bankr.S.D.Tex.2005). In this case, the Debtor concedes that the 2006 Case was presumptively filed not in good faith as to MERS, Ashley Place Condominium Unit Owners Association, and Capital One Auto Finance because each of them had sought and received relief from the automatic stay in the 2005 Case and, therefore, the rebuttable presumption arises under § 362(c)(3)(C)(ii). The Debtor contends that the presumption does not arise as to all creditors under § 362(c)(3)(C)®. MERS does not disagree and the Court finds that the rebuttable presumption does not arise in the 2006 Case as" }, { "docid": "6096518", "title": "", "text": "a debtor was dismissed within such 1-year period, after the debtor failed to- (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded- (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed ... If such a presumption arises, then the moving party must carry its burden by clear and convincing evidence. 11 U.S.C. § 362(c)(3). If the presumption does not arise, then the moving party must carry its burden under Section 363(b)(3)(B) by a preponderance of the evidence. In re Ga-lanis, 334 B.R. 685, 698 (Bankr.D.Utah 2005). The Previous Case was pending within one year prior to the Present Case. In addition, the Previous Case was dismissed because the Debtor failed to comply with his confirmed plan. Finally, there has been no substantial positive change in the financial or personal affairs of the Debtor since the dismissal of the Previous Case, and there is no reason to conclude that the Present Case will be concluded with a confirmed chapter 13 plan that is fully performed. Thus, the Debtor meets the requirements of all three subsections of Section 362(c)(3)(C), only one of which is necessary to cause the presumption to arise. Accordingly, the Debtor must carry his burden under Section 362(c)(3)(B) by clear and convincing evidence. III. DETERMINING GOOD FAITH UNDER 362(c)(3)(B) The Bankruptcy Code does not explain what a moving party under Section 363(c)(3)(B) must show in order to demonstrate that" }, { "docid": "6090891", "title": "", "text": "all creditors. At the January 11, 2006 hearing, no creditors appeared to contest the Debtor's Motion, but nevertheless Debtor is required to prove that the present case was filed in good faith as to the rights of all creditors who would be stayed under such an extended automatic stay. In this case, Debtor seeks an extension of the stay as to all creditors and so it is the interests of all creditors that this case is measured against. There does not appear to be any dispute in the evidence and the court found the evidence credible, despite the appearance of only one witness and only one document. Mr. Mark testified truthfully. There is currently no precedent in this district for reviewing motions to extend the automatic stay under the BAPCPA, thus the court looks first to the language of Section 362(c)(3)(B) and (C) and the attendant legislative history. As recited above, Section 362(c)(3) permits the court to extend the stay only upon a finding of good faith. Section 362(c)(3)(C) narrows this analysis by providing: For purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)&emdash; (i) as to all creditors, if&emdash; (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to&emdash; (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III) there has not been a substantial change in the financial or personal affairs of the debtor since the" }, { "docid": "6534531", "title": "", "text": "stayed. Clear and convincing Debtor 3.If a rebuttable presumption does not arise, whether the case was filed in good faith as to the creditors to be stayed. Preponderence Debtor 4.Whether the Court should exercise its discretion to extend the automatic stay. Preponderance Debtor The plain language of § 362(c)(3)(B) instructs that the automatic stay may be extended — when the movant “demonstrates that the filing of the later case is in good faith as to the creditors to be stayed.” Accordingly, Ms. Charles bears the burden of proving that this case is filed in good faith as to the creditors to be stayed. However, before addressing whether this new case has been filed in good faith as to Ms. Charles’ creditors, the Court must first determine whether the statute imposes a rebuttable presumption against Ms. Charles. If the Court finds that her case is presumptively filed in bad faith, her burden becomes more onerous. A case is presumed to not be filed in good faith if: (i) the debtor had more than one previous case pending during the previous year; (ii) a case pending within the previous year was dismissed for failure to file certain required documents, provide adequate protection, or- perform under a confirmed plan; or (iii) there has not been a substantial change in the financial or personal affairs of the debtor since the most recent case was dismissed or there is no other reason to determine that the new case will result in a discharge. 11 U.S.C. § 362(c)(3)(C)(i). A case is further presumed to not be filed in good faith as to any creditor that sought relief from the stay in a previous case if upon dismissal of the previous case the stay relief motion was still pending or the action had been resolved by terminating, conditioning, or limiting the stay as to the actions of the creditor. § 362(c)(3)(C)(ii). Under § 362(c)(3)(B), a debtor may only rebut the presumption that a case is not filed in good faith “by clear and convincing evidence to the contrary.” 11 U.S.C. § 362(c)(3)(B). The clear and convincing standard" }, { "docid": "3523022", "title": "", "text": "expenses will outweigh any reduction in Debtor’s income. Debtor offered no evidence as to the cost of his health related problems or the cost of his automobile repairs. No claims filed in any of the three cases directly reflect medical or automobile costs. Neither the Trustee nor any creditor objected to Debtor’s Motion to Impose the Automatic Stay. DISCUSSION If a joint Debtor had two bankruptcy cases pending within one year of the present case, Section 362(c)(4)(A)® provides that the automatic stay shall not go into effect upon the filing of the present case. However, Section 362(c)(4)(B) provides for the imposition of the stay if, within 30 days after filing the present case, the Debtor file a motion seeking imposition of the stay, there is notice and a hearing, and the Debtor demonstrate that the present case is filed “in good faith as to the creditors to be stayed.” Id. Section 362(c)(4)(D) also provides: For the purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)— (I)as to all creditors if— (D 2 or more previous cases under this title in which the individual was a debtor were pending within the 1-year period; (II)a previous case under this title in which the individual was a debtor was dismissed within the time period stated in this paragraph after the debtor failed to file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney), failed to provide adequate protection as ordered by the court, or failed to perform the terms of a plan confirmed by the court; or (III)there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under this title, or any other reason to conclude that the later case will not be concluded, if a case under chapter" }, { "docid": "6096517", "title": "", "text": "year of the present case, then Section 362(c)(3)(A) provides that the automatic stay terminates “with respect to the debt- or” thirty days after filing. However, Section 362(c)(3)(B) provides for a continuation of the stay beyond the initial 30-day period if four requirements are met: (1) a motion is filed; (2) there is notice and a hearing; (3) the notice and hearing are completed before the expiration of the original 30-day period; and (4) the debtor proves that the filing of the new ease “is in good faith as to the creditors to be stayed.” In re Collins, 335 B.R. 646, 650, 2005 WL 3529144, at *2 (Bankr.S.D.Tex. 2005). Pursuant to Section 362(c)(3)(C), a presumption arises that the present case was not filed in good faith as to all creditors if- (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to- (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded- (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed ... If such a presumption arises, then the moving party must carry its burden by clear and convincing evidence. 11 U.S.C. § 362(c)(3). If" }, { "docid": "21398907", "title": "", "text": "if— (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to— (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded— (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and (ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor; and .... [Emphasis added.] The presence of any of the above-listed events gives rise to a re-buttable presumption of bad faith. If the presumption of bad faith arises, the mov-ant must rebut the presumption by “clear and convincing evidence to the contrary.” § 362(c)(3)(C); Collins at 651; In re Charles (“Charles II”), 334 B.R. 207, 215-217 (Bankr.S.D.Tex.2005). In contrast, if the court finds there is no presumption of bad faith arising under § 362(c)(3)(C)(i) or (ii), then the burden of establishing good faith is reduced to preponderance of the evidence. Collins at 651; Charles II, 334" }, { "docid": "6086242", "title": "", "text": "presumption arises that the Present Case was not filed in good faith as to all creditors if— (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to— (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded— (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed ... If such a presumption arises, then the moving party must carry its burden by clear and convincing evidence. 11 U.S.C. § 362(c)(3). If the presumption does not arise, then the moving party must carry its burden under Section 363(b)(3)(B) by a preponderance of the evidence. In re Galanis, 334 B.R. 685, 691 (Bankr.D.Utah 2005). The First and Second Cases were pending within one year prior of the Present Case. The First Case was dismissed prior to confirmation of a chapter 13 plan. The Second Case was converted to chapter 7 and resulted in the Debtors receiving a Chapter 7 discharge. The Debtors meet the requirements of subsection of Section 362(c)(3)(C)(I),which causes the presumption to arise. Accordingly, the Debtors must carry their burden under Section 362(c)(3)(B) by clear and convincing evidence. III. DETERMINING GOOD FAITH UNDER 362(c)(3)(B)" }, { "docid": "14688716", "title": "", "text": "section 707(b); the stay under subsection (a) shall not go into effect upon the filing of the later case; and... .The statutes that trigger the \"not in good faith” presumption are quite broad. See 11 U.S.C. § 362(c)(3)(C)(I)(reprinted supra note 7); compare 11 U.S.C. § 362(c)(4)(D), which provides: (D) for purposes of subparagraph (B) [§ 362(c)(4)(B) ], a case is presumptively-filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)— (i) as to all creditors, if— (I) 2 or more previous cases under this title in which the individual was a debtor were pending within the preceding 1-year period. (II) a previous case under this title in which the individual was a debtor was dismissed within the time period stated in this paragraph after the debtor failed to file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be substantial excuse unless the dismissal was caused by the negligence of the debt- or's attorney), failed to provide adequate protection as ordered by the court; or failed to perform the terms of a plan confirmed by the court; or (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under this title, or any other reason to conclude that the later case will not be concluded if a case under chapter 7, with a discharge, and if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; or (ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, such action was still pending or has been resolved by terminating, conditioning, or limiting the stay as to such action of such creditor... . See, respectively, 11 U.S.C. §§ 362(c)(3)(B)(reprinted supra at note 2) & 362(c)(4)(B)(reprinted supra note 1). . See 11 U.S.C." }, { "docid": "16066958", "title": "", "text": "in § 362(c)(3)(C)(ii) is a creditor in the pending, or in a prior, case. . Section 362(c)(3)(C) states: for the purposes of subparagraph (D), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)— (i) as to all creditors, if— (I) more than 1 previous case under any of chapters % 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapter 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to— (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III)there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded— (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed. . Section 102(5) indicates that \"or” is not exclusive. The inclusion of the final \"or” at the and of § 362(c)(3)(C)(i)(II)(cc) separating subsection (II) from (III) indicates that either of the three subsections (I), (II), or (III) would be sufficient to trigger the presumption. . \"Previous” means: \"Just preceding something else in time or order ... of the immediate past.” http://www.websters-online-dictio-nary.org/ definition/previous (November 21, 2005). .Although \"individual” is not a defined term under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), its meaning is clear when §§ 101(30) and (41) are viewed together. Section 101(30) defines an \"individual with regular" }, { "docid": "3523023", "title": "", "text": "by clear and convincing evidence to the contrary)— (I)as to all creditors if— (D 2 or more previous cases under this title in which the individual was a debtor were pending within the 1-year period; (II)a previous case under this title in which the individual was a debtor was dismissed within the time period stated in this paragraph after the debtor failed to file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney), failed to provide adequate protection as ordered by the court, or failed to perform the terms of a plan confirmed by the court; or (III)there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under this title, or any other reason to conclude that the later case will not be concluded, if a case under chapter 7, with a discharge, and if a case under chapter 11 or 13, with a confirmed plan that will be fully performed ... 11 U.S.C. § 364(c)(4)(D). The Debtor’ two previous cases were pending within one year prior to the present case. In addition, the next most previous case was dismissed because the Debtor failed to comply with his confirmed plan. Therefore, the Debtor meets the criteria of subsections (I) and (II) above and a presumption arises that the Debtor did not file the present case in good faith. The presumption that the Debtor did not file the present case in good faith may only be rebutted by clear and convincing evidence. 11 U.S.C. § 362(c)(4)(D). Only after the presumption is rebutted may the bankruptcy court impose the automatic stay. Id. The Bankruptcy Code does not provide guidance on the facts which the Debtor must prove to overcome the presumption. However, a presumption that a case is not filed in good faith also arises under Section 362(c)(3). Both sections create a presumption of lack of" }, { "docid": "17601188", "title": "", "text": "filing is not in good faith if any one of the three criteria set forth in 11 U.S.C. § 362(c)(3)(C)(i) is present. A presumption of lack of good faith arises under 11 U.S.C. § 362(c)(3)(C)® if: (I) more than one previous case was pending within the last year; (II) the Debtor failed to perform certain requirements in the previous filing; or (III) if “there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under Chapter 7, 11, or 13.... ” See 11 U.S.C. § 362(c)(3)(C)(i)(D-(III) (emphasis added). Once the existence of the presumption of bad faith arises the debtor may rebut the presumption by clear and convincing evidence. See 11 U.S.C. § 362(c)(3)(C); In re Chaney, 362 B.R. 690, 693 (Bankr.E.D.Va.2007). Courts use a “totality of the circumstances” standard to determine whether a Debtor has rebutted a § 362(c)(3)(C) presumption. See 16 CollieR on BaNEruptcy ¶ 362.06[3][b]. If no presumption arises, the Debtor’s good faith pursuant to § 362(c)(3)(B) should be evaluated using a preponderance of the evidence standard. See In re Thomas, 352 B.R. 751, 754 (Bankr.D.S.C.2006). There is no evidence to suggest that a presumption of bad faith arises in Debtor’s current bankruptcy filing. Debt- or had only one other petition pending within the year preceding her December 16, 2011 petition. This eliminates § 362(c)(3)(C)(i)(I) as a criteria for bad faith. Further, Debtor’s previous petition was not dismissed for any of the reasons stated in § 362(c)(3)(C)(i)(II). Finally, Debtor did provide sufficient facts to indicate her changed financial circumstances. For example, Debtor’s Schedules suggest that her current financial situation has improved since her previous filing, even considering the pay cut her husband received since the February 1, 2012 hearing date. Debtor reports a positive net monthly income, which will make it much more likely that she will be able to make plan payments than was the case in April 2011 when her net income was negative. Section 362(c)(3)(C)(i)(III) is therefore eliminated as an indication of bad faith. Because none of the criteria in" }, { "docid": "5833313", "title": "", "text": "in bad faith, a presumption which may arise under Section 362(c)(3)(C). The analysis in Section 362(c)(3)(C) is directed at several types of conduct. The presence of one or more of the acts identified in Section 362(c)(3)(C) will trigger the presumption that the instant case was filed in bad faith, and this presumption can only be rebutted by “clear and convincing evidence to the contrary”. Id. The following acts or omissions are listed in Section 362(c)(3)(C): — More than one bankruptcy case (under any chapter) was pending against the debtor in the year pri- or to the filing of the instant case. 11 U.S.C. § 362(c)(3)(C)(i)(I). — The debtor, in a prior case pending against him or her in the year prior to the filing of the instant case, failed to take any of three specifically defined acts: — Failure to file or amend the petition or other documents as required by the Bankruptcy Code or the court, without substantial excuse; — Failure to provide court-ordered adequate protection; or — Failure to perform the terms of a plan confirmed by the court. 11 U.S.C. § 362(c)(3)(C)(i)(II). — There is no substantial change in the financial or personal affairs of the debtor since dismissal of his or her last bankruptcy case, and there is no other reason to conclude that the instant case will conclude with either a discharge in Chapter 7 or a confirmed and fully performed plan under Chapter 11 or Chapter 13. 11 U.S.C. § 362(c)(3)(C)(i)(III). — The debtor’s prior case was dismissed when either a creditor’s motion for relief from the automatic stay was still pending or had been resolved by terminating, conditioning or limiting the stay as to actions of the creditor. 11 U.S.C. § 362(c)(3)(C)®). Except for the last of these, when any of the conditions described above are present, the latest bankruptcy filing is presumably filed in bad faith as to all creditors. The circumstances described in Section 362(e)(3)(C)(n) raise a presumption that the filing is in bad faith only as to the specific creditor that moved for relief from the automatic stay under Section" }, { "docid": "20934442", "title": "", "text": "new case was in good faith). Collins, 335 B.R. at 650. Section 362(c)(3)(C) provides that for purposes of subparagraph (B), a case is presumptively filed in bad faith: (i) as to all creditors, if— (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to— (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III)there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded — (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and (ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor; and.... [Emphasis added.] The presence of any of the above-listed events gives rise to a re-buttable presumption of bad faith. If the presumption of bad faith arises, the mov-ant must rebut the presumption by “clear and convincing evidence to the contrary.” § 362(c)(3)(C); Collins at 651; In re Charles (“Charles II”), 334 B.R. 207, 215-217 (Bankr.S.D.Tex.2005). In contrast, if the court finds there" }, { "docid": "5025065", "title": "", "text": "good faith as to the creditors to be stayed; and (C) for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary)— (i) as to all creditors, if— (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to— (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded— (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and (ii) as to any creditor that commenced an action under subsection (d) in a previous case in which the individual was a debtor if, as of the date of dismissal of such case, that action was still pending or had been resolved by terminating, conditioning, or limiting the stay as to actions of such creditor[.] 11 U.S.C. § 362(c)(3) (emphasis added). Whereas section 362(c)(3) applies to individual debtors who had one prior case pending in the previous year, section 362(e)(4)(A)(i) applies to individual debtors who had two or more cases pending within the previous year: (4)(a)(i) if a single or joint case is filed by or against" }, { "docid": "7907859", "title": "", "text": "completed before the expiration of the 30-day period, b. the court may extend the stay as to any or all creditors (subject to such conditions or limitations as the court may impose), c. only if the movant demonstrates that the filing of the later case is in good faith as to the creditors to be stayed. Therefore, the issue under § 362(e)(3)(B) is whether the later case was filed in good faith with respect to the creditors to be stayed. A rebuttable presumption that a later case is not filed in good faith arises by statute under § 362(c)(3)(C), which provides: for purposes of subparagraph (B), a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary) (i) as to all creditors, if (I) more than 1 previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was pending within the preceding 1-year period; (II) a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to (aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney); (bb) provide adequate protection as ordered by the court; or (cc) perform the terms of a plan confirmed by the court; or (III) there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or any other reason to conclude that the later case will be concluded (aa) if a case under chapter 7, with a discharge; or (bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed; and (ii) as to any creditor that commenced an action under subsection (d) in a previous case in" }, { "docid": "17601187", "title": "", "text": "dismissal of the debtor’s last petition, the automatic stay “with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the latter case.... ” 11 U.S.C. § 362(c)(3)(A). In this case the Debtor falls within the purview of 11 U.S.C. § 362(c)(3)(A). However, 11 U.S.C. § 362(c)(3)(B) allows for an extension of the automatic stay: on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed; ... 11 U.S.C. § 362(c)(3)(B). 11 U.S.C. § 362(c)(3)(C) provides for a presumption that the filing is not in good faith if any one of the three criteria set forth in 11 U.S.C. § 362(c)(3)(C)(i) is present. A presumption of lack of good faith arises under 11 U.S.C. § 362(c)(3)(C)® if: (I) more than one previous case was pending within the last year; (II) the Debtor failed to perform certain requirements in the previous filing; or (III) if “there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under Chapter 7, 11, or 13.... ” See 11 U.S.C. § 362(c)(3)(C)(i)(D-(III) (emphasis added). Once the existence of the presumption of bad faith arises the debtor may rebut the presumption by clear and convincing evidence. See 11 U.S.C. § 362(c)(3)(C); In re Chaney, 362 B.R. 690, 693 (Bankr.E.D.Va.2007). Courts use a “totality of the circumstances” standard to determine whether a Debtor has rebutted a § 362(c)(3)(C) presumption. See 16 CollieR on BaNEruptcy ¶ 362.06[3][b]. If no presumption arises, the Debtor’s good faith pursuant to § 362(c)(3)(B) should" } ]

[ { "docid": "13332007", "title": "", "text": "HEANEY, Circuit Judge. Plaintiff appeals an order entered in this civil rights action by the United States District Court for the Eastern District of Missouri denying his prayer for damages and declaratory judgment. The case was tried below upon stipulated facts. The plaintiff’s minor son, Michael, age eighteen, was shot and killed by defendant Marek, a police officer, while attempting to escape arrest. Michael and another youth, Thomas Rolf, age seventeen, had entered the office of a golf driving range at night for the purpose of taking money by opening an unlocked window. Marek and another officer attempted to arrest the two youths who ran in different directions. Marek ran into Mattis, Mattis broke away and Marek pursued. Marek was losing the race and shouted, “Stop or I’ll shoot.” Mattis failed to stop and Marek fired one shot (he believed he fired well above Mattis) which struck Mattis in the head. Marek and the other officer would: * * * testify that their use of their guns in the manner described was reasonably necessary under the circumstances and was authorized by the statutes of the State of Missouri and that such statutes were valid and lawful. Mattis v. Kissling, et al., Civil No. 72-Civ. (3) (E.D.Mo., filed January 16, 1973). The trial court initially held that the plaintiff had standing to bring this action under Title 42 U.S.C. § 1983. It reasoned that the section did not create a new cause of action in favor of a person for the wrongful death of another, but that § 1988 of the same title authorizes resort to state law to determine whether a cause of action survives for the wrongful death of another. Prit-chard v. Smith, 289 F.2d 153 (8th Cir. 1961). It further reasoned that since Missouri law (V.A.M.S. § 537.080) permits a father to bring a wrongful death action for the death of an unmarried min- or son, the father had standing to bring this action. The court went on to hold, however, that the defense of good faith was available to the defendants as they had acted in reliance" } ]

[ { "docid": "22940432", "title": "", "text": "Staras, 507 F.2d 554, 557 (7th Cir. 1974), mandates that federal civil rights actions survive for the benefit of an injured party’s estate only to the extent that the applicable state law permits such claims to survive. Looking to the Illinois Survival Act, Ill.Rev. Stat. ch. 3, § 339, the court concluded that the instant claims survived only insofar as they sought damages for the physical injuries Beard suffered. Relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), the court then dismissed the action altogether because the physical injury claims were barred by Illinois’s two-year statute of limitations. Ill.Rev.Stat. ch. 83, § 15. II. Survival We turn first to the question of whether the claims alleged survive Beard’s death. Plaintiff presents several theories for the survival of her action. She argues that the action as a whole survives (1) under the Illinois Survival Act, both as an action to recover damages for “injuries] to the person” and as an action “against officers for misfeasance, malfeasance, or non-feasance”; (2) under Illinois common law; and (3) under federal common law. We hold, as a matter of federal law, that under Illinois law the action survives “against officers for misfeasance, malfeasance or non-feasance” and thus need not consider plaintiff’s other arguments. Neither the Civil Rights Acts nor the Supreme Court’s decision in Bivens speaks to the abatement or survival of actions brought thereunder. Faced with the absence of a governing federal rule of decision, most courts that have considered the question of the survival of federal civil rights claims have looked to state law, either on the authority of 42 U.S.C. § 1988 or simply because reference to state law obviated the need to fashion an independent federal common law rule. E.g., Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir." }, { "docid": "840133", "title": "", "text": "cause of action and for a wrongful death action, was to be applied in the federal suit to allow the maintenance of those actions. The Court of Appeals first rejected defendants’ contention that the civil rights statutes, by their language, reflect a purpose that actions under that statute shall not survive. Since § 1983 provides that the violator “shall be liable to the party injured” (emphasis added) and § 1985(3) affords a right of action to the “party so injured or deprived,” the claim was made that Congress purposefully extended the right to file a civil suit for damages only to the person whose civil rights were violated. In rejecting this contention, the court found a “clear congressional policy to protect the life of the living from the hazard of death caused by unconstitutional deprivations of civil rights . . . .” Brazier v. Cherry, supra at 405. It went on to state the purposes of the civil rights statutes concerning survival: “[I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it means to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple.” (footnote omitted) Id. at 404. The Brazier court concluded that “[o]n our analysis federal law is not suitable, i. e., sufficient, since it leaves a gap for death in a substantive policy making no distinction between violent injury and violent death.” Id. at 408. Every court that has considered the matter has found, either explicitly or by implication, that the lack of survival provisions in the federal civil rights laws is such a deficiency. E. g., Brazier v. Cherry, supra; Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961); Evain v. Conlisk, 364 F.Supp. 1188 (N.D.Ill.1973), aff’d without opinion 498 F.2d 1403 (7th Cir. 1974); Holmes v. Silver Cross" }, { "docid": "2852880", "title": "", "text": "F.2d 331, 333 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978); (Bivens action); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961) (action survived the defendant’s death); Salazar v. Dowd, 256 F.Supp. 220, 222-23 (D.Colo.1966). As stated by the Fifth Circuit in Brazier v. Cherry, the lead case in this area: [I]t defies history to conclude that congress purposely meant to assure to the living freedom from such unconstitutional deprivation but that, with like precision, it meant to withdraw the protections of the Civil Rights statutes against the peril of death. The policy of law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence that would cripple. 293 F.2d at 404. The statutory mechanism that authorizes resort to state survival law to permit civil rights actions to survive the plaintiffs death is 42 U.S.C. § 1988. Because § 1983 is silent on the question of survival, 42 U.S.C. § 1988 requires, in light of this “deficiency” that state law be used unless it is “inconsistent with the constitution and the laws of the United States.” Courts have extended this analysis to permit incorporation of state wrongful death statutes into § 1983, through § 1988. See e.g. Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974); Mattis v. Schnarr, 502 F.2d 588, 590-91 (8th Cir. 1974), on remand, 404 F.Supp. 643 (E.D.Mo.1975) rev’d on other grounds, 547 F.2d 1007 (8th Cir. 1976), vacated on other grounds, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977); Kalmanash v. Wolfe, Slip Opinion Civ. 1798-CSH (S.D.N.Y., Dec. 14, 1978); Smith v. Wickline, 396 F.Supp. 555, 557-61 (W.D.Okl. 1975). While § 1988 authorizes § 1983 actions after the true plaintiff’s death, the nature of the actions differ depending on whether state survival or state wrongful death law is incorporated into the federal cause of action. Survival statutes simply allow the cause of action to survive regardless of the death of a party. Accordingly," }, { "docid": "2395438", "title": "", "text": "claim against the FBI agents was brought pursuant to Bivens. Noting that neither the Civil Rights Acts nor the Supreme Court’s decision in Bivens addressed the issues of abatement or survival of such actions, this court said that “most courts that have considered the question of the survival of federal civil rights claims have looked'to state law, either on the authority of 42 U.S.C. § 1988 or simply because reference to state law obviated the need to fashion an independent federal common law rule.” Id. at 333. As to the claim, under the Civil Rights Acts, this court, pursuant to the authority of section 1988, borrowed the Illinois Survival Act because that statute was deemed completely consistent with the Constitution and the laws of the United States. As to the plaintiff’s Bivens claim we said, “[T]he adoption of state law likewise seems warranted since it is consistent with the federal policies underlying Bivens.” Id. The same underlying policies dictate our decision here. It would be anomalous as well as ironic to hold that Jones, Jr. could have sought redress for violation of his constitutional rights had he survived the alleged wrongdoing, but because the wrongdoing caused his death, the law is impotent to provide a remedy to benefit his estate. Such a holding would not only fail to effectuate the policy of allowing complete vindication of constitutional rights; it would subvert that policy. Although the Fifth Circuit in Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), was concerned with survival of an action brought under the civil rights statutes (and not a BiVens-type action), Judge Brown’s language is apposite: [I]t defies history to conclude that Congress purposely meant to assure the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple. 293 F.2d" }, { "docid": "7644936", "title": "", "text": "liable to pay punitive or exemplary damages in any action brought directly against it by the injured party.” Ill.Rev.Stat. ch. 85, § 2-102 (1979). The Seventh Circuit has held that the Illinois Tort Immunity Act “cannot protect defendants against a cause of action grounded, as here, on a federal statute.” McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). In Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974), the Seventh Circuit held that, provided certain aggravating circumstances are shown, punitive damages are recoverable under federal law in a section 1983 action, even in the absence of actual loss to the plaintiff. See also Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1067 (1st Cir. 1980), cert. granted sub nom., Newport v. Fact Concerts, Inc., - U.S. -, 101 S.Ct. 782, 66 L.Ed.2d 603 (1980), argued March 13, 1981, 29 Crim.L.Rptr. 4013 (up holding an award of punitive damages against a municipality in a section 1983 suit). Accordingly, the villages’ motion to strike the request for punitive damages is denied. It is so ordered. The villages and Chief Kohnke also move to strike the prayer for punitive damages under the state law wrongful death and survival claims. Illinois law is clear that punitive damages may not be recovered under either the Survival Act, Ill.Rev. Stat., ch. 110%, § 27-6 (1979), or the Wrongful Death Act, Ill.Rev.Stat., ch. 70, §§ 1, 2 (1979). See Mattyasovszky v. West Towns Bus Company, 61 Ill.2d 31, 330 N.E.2d 509, 512 (1975); Rusher v. Smith, 70 Ill.App.3d 889, 26 Ill.Dec. 905, 910-911, 388 N.E.2d 906, 911-12 (5th Dist. 1979). See also In re Air Crash Disaster Near Chicago, Illinois, on May 25, 1979, 644 F.2d 594, at 605-606 (7th Cir., 1981). Hamrick contends, however, that to deny punitive damages in wrongful death and survival actions while permitting them in personal injury cases violates principles of equal protection, citing In re Paris Air Crash of March 3, 1974, 427 F.Supp. 701 (C.D.Cal.1977). Other courts have reached a contrary result. See Johnson v. International Harvester Co., 487 F.Supp. 1176, 1178-82 (D.N.D.1980). Accordingly, the" }, { "docid": "23135042", "title": "", "text": "293 F.2d at 402 n. 1. This court held that 42 U.S.C. § 1988 incorporated both Georgia’s survival statute and Georgia’s wrongful death statute to provide full remedies for violations of constitutional rights. Id. at 409. The Brazier court reasoned that, unless the decedent’s cause of action survived his death, the remedies provided by § 1983 would fail when the injury is death. Id. at 407-09. The court concluded that such an anomalous result indicated that the remedies under § 1983 were deficient without the support of state law. The court held that § 1983 incorporated Georgia’s wrongful death and survival statutes as remedies under § 1983. Id. Much of Brazier’s discussion concerned the survival of the decedent’s claim, as opposed to the widow’s right to recover for her own injuries arising out of her husband’s death. However, the court held that both Georgia’s wrongful death and survival statutes were incorporated into federal law under § 1988, stating “Since Georgia now provides both for survival of the claims which the decedent had for damages sustained during his lifetime as well as a right of recovery to his surviving widow and others for homicide, ... we need not differentiate between the two types of actions. To make the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of victims. Section 1988 declares that this need may be fulfilled if state law is available. Georgia has supplied the law.” Brazier, 293 F.2d at 409. In Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir.1985), this court allowed a father to recover for the loss of society and companionship incurred by the wrongful death of his son. In reaching this result, the Grandstaff court stated simply that “[w]e look to Texas law for guidance on the damages recoverable for [plaintiffs son’s] death.” Id. As Judge Garwood’s dissent in Grandstaff noted, the plaintiff in Grandstaff was not recovering damages that were a “rough proxy for the deceased’s damages” but rather was recovering damages for an injury that the parent suffered in his own right. Grandstaff," }, { "docid": "14222706", "title": "", "text": "federal courts to look to state law to determine whether a § 1983 action survives: Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974). And in Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973), in which this court looked to state law to ascertain a sheriff’s responsibility in a § 1983 action for the actions of his subordinates, we noted, at page 242, that in questions of survivability of a § 1983 cause of action, federal courts have relied on state law, citing Brazier v. Cherry, supra. The court, in Brazier, pointed out that while Congress has the “constitutional power to spell out a comprehensive right of survival for civil rights claims,” 293 F.2d at 406, Congress has not exercised this power and therefore resort must be taken to state law, by authority of 42 U.S.C. § 1988. We thus turn to the law of South Carolina to determine if Dean’s cause of action survives. At common law, actions in tort did not survive. Carver v. Morrow, 213 S.C. 199, 48 S.E.2d 814 (1948); Mattison v. Palmetto State Life Ins. Co., 197 S.C. 256, 15 S.E.2d 117 (1941); see Moor, 411 U.S. at 702, n. 14, 93 S.Ct. 1785. However, the South Carolina legislature has enacted a provision for survival of injuries to the person. “Causes of action for and in respect to any and all injuries and trespasses to and upon real estate and any and all injuries to the person or to personal property shall survive both to and against the personal or real representative, as the case may be, of a deceased person and the legal representative of an insolvent person or a defunct or insolvent corporation, any law or rule to the contrary notwithstanding.” S.C.Code § 10-209. Exceptions to such survivability of actions for personal injuries are actions for malicious prosecution, slander, fraud and deceit. See" }, { "docid": "23196388", "title": "", "text": "simply provides remedial assistance “to effectuate well-established primary rules of behavior” that are enforceable under § 1983. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) (creating common law wrongful death action in admiralty). When the alleged constitutional violation results in death, Congress, through § 1988, has authorized resort to state law to assist the broad remedial policies of § 1983. See Moor, 411 U.S. at 701, 702-03, 93 S.Ct. at 1791, 1792. The Brazier court adopted this view, commenting on the meaning of the phrase “suitable remedies” in § 1988, as follows: “Used, as it was in parallel with the phrase ‘and punish offenses against law,’ it comprehends those facilities available in local state law but unavailable in federal legislation, which will permit the full effectual enforcement of the policy sought to be achieved by the statutes. And in a very real sense the utilization of local death and survival statutes does not do more than create an effective remedy. This is so because the right is surely a federally protected one — the right to be free from deprivation of constitutional civil rights. The local death or survival statute adopted by reference in this fashion does not add to that substantive right. It merely assures that there will be a ‘remedy’ — a way by which that right will be vindicated — if there is a violation of it.” 293 F.2d at 408-09. Accord Smith v. Wickline, 396 F.Supp. 555, 559-60 (W.D.Okla.1975) (borrowing Oklahoma’s wrongful death statute in a § 1983 claim); see also Moragne, 398 U.S. at 381-82, 90 S.Ct. at 1777-78. (“Because the primary duty already exists, the decision whether to allow recovery for violations causing death is entirely a remedial matter.”). Moreover, Robertson can be read as a strong signal by the Supreme Court that it is appropriate to look to state law survival and wrongful death statutes to supply an appropriate remedy for § 1983 violations that result in death. Cf. Carey v. Piphus, 435 U.S. 247, 258, 98 S.Ct. 1042, 1049, 55 L.Ed.2d 252 (1978)" }, { "docid": "2852879", "title": "", "text": "stalking abroad in disguise, while whipping and lynchings and banishment have been visited upon unoffending American citizens, the local ad- ministrations have been found inadequate or unwilling to apply the proper correction. Id. at 374. Similarly, Congressman Butler stated that: This then is what we offer to a man whose house has been burned, as a remedy; to the woman whose husband has been murdered, as a remedy; to the children whose father has been killed, as a remedy. Id. at 807. The general rule in this area, adopted by the circuits and approved by the Supreme Court, is that § 1983 actions survive the plaintiff’s death if that would be the result under the applicable state law. See Moor v. Cty. of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 1792 n.14, 36 L.Ed.2d 596 (1973); Brazier v. Cherry, 293 F.2d 401 (5th Cir.) cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see also Duchesne v. Sugarman, 566 F.2d 817, 821 (2d Cir. 1977); Beard v. Robinson, 563 F.2d 331, 333 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978); (Bivens action); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961) (action survived the defendant’s death); Salazar v. Dowd, 256 F.Supp. 220, 222-23 (D.Colo.1966). As stated by the Fifth Circuit in Brazier v. Cherry, the lead case in this area: [I]t defies history to conclude that congress purposely meant to assure to the living freedom from such unconstitutional deprivation but that, with like precision, it meant to withdraw the protections of the Civil Rights statutes against the peril of death. The policy of law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence that would cripple. 293 F.2d at 404. The statutory mechanism that authorizes resort to state survival law to permit civil rights actions to survive the plaintiffs death is 42 U.S.C. § 1988. Because § 1983 is silent on the question of" }, { "docid": "14506523", "title": "", "text": "not survive under Illinois law in the absence of a specific statutory survival provision. We reject both the conclusion reached and the analysis used by the district court on this issue. First, we believe that the survival question must properly be determined as a matter of federal, not state, law. It is true, of course, that neither TILA itself nor any other federal statute makes provision for the survival or non-survival of this cause of action. We find, however, no basis for turning to state law in resolving this question. Generally speaking, the question of survival of a federal statutory cause of action is one of federal common law, in the absence of a specific federal statutory directive. Bowles v. Farmers National Bank, 147 F.2d 425 (6th Cir. 1945); Heikkila v. Barber, 308 F.2d 558 (9th Cir. 1962). For this reason state survival rules have no application. Survival of federal civil rights actions under 42 U.S.C. § 1983 has been an area of frequent litigation in the federal courts. However, pronouncements in that area are not authoritative with respect to other federal causes of action, because of the peculiar statutory scheme involved in civil rights actions. 42 U.S.C. § 1988 specifically refers federal courts to state law in filling in the interstices in federal civil rights actions, unless the state law would be inconsistent with federal law. This special statute thus makes survival of federal civil rights actions a matter of state law, at least in the first instance. This has been made clear recently in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). However, TILA contains no provision similar to 42 U.S.C. § 1988. We are not aware of any cases which have directly considered the question whether a TILA action survives the death of the debtor plaintiff. However, two cases, Murphy v. Household Finance Corp., 560 F.2d 206 (6th Cir. 1977), and Porter v. Household Finance Corp., 385 F.Supp. 336 (S.D.Ohio 1974), have given indirect consideration to this question. In Murphy and Porter the question presented was whether such an action passed to" }, { "docid": "18690128", "title": "", "text": "444 F.Supp. 61 (W.D.Okl.1977) (state law did not provide for survival of an action to recover damages for violation of a decedent’s civil rights while he was alive); James v. Murphy, 392 F.Supp. 641 (M.D.Ala.1975) (claim of cruel and unusual punishment, inflicted on inmate who died while imprisoned, survived his death under state law; plaintiff thus could stand in his place and assert this claim); Evain v. Conlisk, 364 F.Supp. 1188 (N.D.Ill.1973) affirmed without opinion, 498 F.2d 1403 (7th Cir. 1974) (cause of action survives for the benefit of deceased’s estate where the deprivation of the individual’s rights results in death, if so provided by state law). The Court of Appeals for the Fourth Circuit followed this rule in Dean v. Shirer, 547 F.2d 227 (4th Cir. 1976), a § 1983 action where the plaintiff died during the pendency of his suit for reasons unrelated to the defendant’s actions. The Court relied on a South Carolina statute which provided for survival of injuries to the person and held that the deceased’s action for assault or false imprisonment did survive. The applicability of the state survival statutes to § 1983 actions was confirmed by the Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). There, the plaintiff in a § 1983 action died while his suit was pending. His death was unrelated to the defendants’ actions. The Court ruled that under § 1988 the applicable state law governed the survivability issue. Under the state rule, the deceased’s action abated because no person with the required relationship to him was alive at the time of his death. Concluding that this result was not inconsistent with the policies underlying § 1983, the Court held that the action did not survive. The Court specifically declined to express any view on whether abatement based on state law would prevail in a case like the instant one in which deprivation of federal rights caused death. The issue reached the Supreme Court again, in a different form, in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15" }, { "docid": "2852881", "title": "", "text": "survival, 42 U.S.C. § 1988 requires, in light of this “deficiency” that state law be used unless it is “inconsistent with the constitution and the laws of the United States.” Courts have extended this analysis to permit incorporation of state wrongful death statutes into § 1983, through § 1988. See e.g. Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974); Mattis v. Schnarr, 502 F.2d 588, 590-91 (8th Cir. 1974), on remand, 404 F.Supp. 643 (E.D.Mo.1975) rev’d on other grounds, 547 F.2d 1007 (8th Cir. 1976), vacated on other grounds, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977); Kalmanash v. Wolfe, Slip Opinion Civ. 1798-CSH (S.D.N.Y., Dec. 14, 1978); Smith v. Wickline, 396 F.Supp. 555, 557-61 (W.D.Okl. 1975). While § 1988 authorizes § 1983 actions after the true plaintiff’s death, the nature of the actions differ depending on whether state survival or state wrongful death law is incorporated into the federal cause of action. Survival statutes simply allow the cause of action to survive regardless of the death of a party. Accordingly, a § 1983 survival action, relying on the incorporation of state survival law through § 1988, is essentially the assertion of the cause of action that the deceased would have had had he lived, requesting damages for violation of the decedent’s rights. Wrongful death statutes, by contrast, provide for causes of action to arise in and for the benefit of certain designated persons in order to compensate them for their personal losses resulting from the decedent’s death, against the persons who wrongfully caused the decedent’s death. See generally Nachmod, Civil Rights and Civil Liberties Litigation, § 3.17 (1979); compare C.R.S. § 13-20-101 (1973) with C.R.S. §§ 13-21-202, 13-21-203 (1973). Section 1983 actions, relying on incorporation of state wrongful death law through § 1988, are, therefore, actions for damages to the plaintiffs by virtue of the decedent’s unconstitutional killing. Such damages are not limited to, nor the same as the damages that the decedent would have been entitled to had he lived. III. THE PLAINTIFFS’ CLAIMS In order to rule on the pending motions in this" }, { "docid": "3709254", "title": "", "text": "been held that pursuant to § 1988 state survivorship statutes which reverse the common-law rule may be used in the context of actions brought under § 1983.” See also Robertson v. Wegmann, 436 U.S. 584, 588-90, 98 S.Ct. 1991, 1994-95, 56 L.Ed.2d 554 (1978) (under 42 U.S.C. § 1988, state survivorship statutes provide “the principal reference point in determining survival of civil rights actions” unless the state law is “ ‘inconsistent with the Constitution and the laws of the United States’ ”). Many federal district and appellate courts have addressed the issue of the survivorship of civil rights actions, coming out with different results depending on the pertinent state survivorship statute. See White v. Walsh, 649 F.2d 560, 562 n. 4 (8th Cir.1981) (civil rights claim that defendants conspired to deny plaintiff a fair trial by empaneling an all-white jury survived the death of defendant), citing Gray v. Wallace, 319 S.W.2d 582, 584-85 (Mo.1958) (Mo. Supreme Court ruled that a plaintiffs cause of action for malicious prosecution did not abate by reason of the death of the named defendant); Pritchard v. Smith, 289 F.2d 153 (8th Cir.1961) (under Arkansas law, plaintiffs 42 U.S.C. § 1983 action survived the death of the defendant); Dear v. Rathje, 391 F.Supp. 1, 7 (N.D.Ill.1975), aff'd without op., 532 F.2d 756 (7th Cir.1976) (plaintiffs’ 42 U.S.C. § 1983, akin to Illinois state defamation action, abated upon the death of the defendant and could not thereafter be maintained by suit against his estate because the Illinois legislature specifically excepted slander and libel from actions which survive); and Landman v. Royster, 354 F.Supp. 1302, 1315-16 (E.D.Va.1973) (held that pursuant to the rule of Barnes Coal Corp. v. Retail Coal Merchants Ass’n, 128 F.2d 645 (4th Cir.1942), federally created causes of action in tort do not survive the death of a defendant unless the tort alleged is one “affecting property rights”). We now turn to Puerto Rico law to determine if the civil rights action against co-defendant Luyando survives his death. In Puerto Rico, no survivorship statute exists concerning tort cases in general. But the Puerto Rico Supreme" }, { "docid": "18690127", "title": "", "text": "survivability. In such circumstances, the Court is directed by 42 U.S.C. § 1988 to follow “the common law, as modified and changed by the constitution and statutes of the State wherein [this Court sits] ... so far as the same is not inconsistent with the Constitution and laws of the United States .... ” Many courts have held that state law governs the question of whether an action under § 1983 survives the death of the injured party, both in cases where the acts of the defendants bore no connection to that party’s death and in cases where the alleged constitutional deprivations were the cause of death. These courts have allowed the survival of a § 1983 action if so provided by state law. Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978) (mother of son killed by police officers could bring civil rights action since state law granted her standing); Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961) (death caused by beating at hands of policemen; state law allowed survival); Black v. Cook, 444 F.Supp. 61 (W.D.Okl.1977) (state law did not provide for survival of an action to recover damages for violation of a decedent’s civil rights while he was alive); James v. Murphy, 392 F.Supp. 641 (M.D.Ala.1975) (claim of cruel and unusual punishment, inflicted on inmate who died while imprisoned, survived his death under state law; plaintiff thus could stand in his place and assert this claim); Evain v. Conlisk, 364 F.Supp. 1188 (N.D.Ill.1973) affirmed without opinion, 498 F.2d 1403 (7th Cir. 1974) (cause of action survives for the benefit of deceased’s estate where the deprivation of the individual’s rights results in death, if so provided by state law). The Court of Appeals for the Fourth Circuit followed this rule in Dean v. Shirer, 547 F.2d 227 (4th Cir. 1976), a § 1983 action where the plaintiff died during the pendency of his suit for reasons unrelated to the defendant’s actions. The Court relied on a South Carolina statute which provided for survival of injuries to the person and held that the deceased’s action for assault or" }, { "docid": "2395439", "title": "", "text": "could have sought redress for violation of his constitutional rights had he survived the alleged wrongdoing, but because the wrongdoing caused his death, the law is impotent to provide a remedy to benefit his estate. Such a holding would not only fail to effectuate the policy of allowing complete vindication of constitutional rights; it would subvert that policy. Although the Fifth Circuit in Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), was concerned with survival of an action brought under the civil rights statutes (and not a BiVens-type action), Judge Brown’s language is apposite: [I]t defies history to conclude that Congress purposely meant to assure the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple. 293 F.2d at 404. Allowing recovery for injury but denying relief for the ultimate injury — death—would mean that it would be more advantageous for a tortfeasor to kill rather than to injure. Surely this cannot be the intent of the law. The essentiality of the survival of civil rights claims for complete vindication of constitutional rights is buttressed by the need for uniform treatment of those claims, at least when they are against federal officials. As this very case illustrates, uni- formity cannot be achieved if courts are limited to applicable state law. Here the relevant Indiana statute would not permit survival of the claim, while in Beard the Illinois statute permitted survival of the Bivens action. The liability of federal agents for violation of constitutional rights should not depend upon where the violation occurred. It should also be noted that because federal prison authorities decide the prison where a prisoner is incarcerated, those authorities in a sense choose the state in which the wrong occurs. This is an additional reason why the survivorship law of" }, { "docid": "18690126", "title": "", "text": "plaintiff lacks standing to sue under § 1983 because she claims only that the constitutional rights of another have been violated and does not assert that her own rights have been infringed; (2) the deceased’s constitutional claims did not survive his death; (3) Virginia’s wrongful death statute precludes the punitive damages plaintiff claims and limits compensatory damages to those the beneficiaries can show occurred to them personally; (4) plaintiff’s suit is against the defendants in their individual and official capacities; a suit against them in their official capacities is barred by the Eleventh Amendment. The first two arguments of the defendants blend into one problem, for the plaintiff herein does have standing to sue as the personal representative of the deceased’s estate in a wrongful death action if such an action is available under § 1983, i. e. if the deceased’s constitutional claims survived his death. Here the alleged constitutional violations by the defendants are alleged to be the cause of the decedent’s death. 42 U.S.C. § 1983 itself is silent on the question of survivability. In such circumstances, the Court is directed by 42 U.S.C. § 1988 to follow “the common law, as modified and changed by the constitution and statutes of the State wherein [this Court sits] ... so far as the same is not inconsistent with the Constitution and laws of the United States .... ” Many courts have held that state law governs the question of whether an action under § 1983 survives the death of the injured party, both in cases where the acts of the defendants bore no connection to that party’s death and in cases where the alleged constitutional deprivations were the cause of death. These courts have allowed the survival of a § 1983 action if so provided by state law. Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978) (mother of son killed by police officers could bring civil rights action since state law granted her standing); Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961) (death caused by beating at hands of policemen; state law allowed survival); Black v. Cook," }, { "docid": "14222705", "title": "", "text": "be as he amplifies them in his answers to interrogatories. I Shirer moves to dismiss the case here as moot on the ground that Dean died on April 6, 1975, and that his action under 42 U.S.C. § 1983 does not survive. Counsel for plaintiff has moved to substitute Mrs. Clyde C. Dean, administratrix of the Estate of Clyde C. Dean, as the proper party to this action. The Supreme Court has noted in Moor v. County of Alameda, 411 U.S. 693, 702-03 and n. 14, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), that the question of survivability under 42 U.S.C. § 1983 is an area which is not covered by existing federal law. Although dictum, the Court suggests, “Pursuant to § 1988 state survivorship statutes which reverse the common-law rule may be used in the context of actions brought under § 1983,” and refers to Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921 (1961), 82 S.Ct. 243, 7 L.Ed.2d 136. Several circuits have stated it is appropriate for federal courts to look to state law to determine whether a § 1983 action survives: Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974). And in Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973), in which this court looked to state law to ascertain a sheriff’s responsibility in a § 1983 action for the actions of his subordinates, we noted, at page 242, that in questions of survivability of a § 1983 cause of action, federal courts have relied on state law, citing Brazier v. Cherry, supra. The court, in Brazier, pointed out that while Congress has the “constitutional power to spell out a comprehensive right of survival for civil rights claims,” 293 F.2d at 406, Congress has not exercised this power and therefore resort must be taken to state law, by authority of 42" }, { "docid": "23135041", "title": "", "text": "this action in her representative capacity. Rather, Rhyne seeks to recover for her own injuries arising out of the wrongful death of her son. The right to such recovery under § 1983 has “generated considerable confusion and disagreement,” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991), over which the circuits have divided. Compare Jaco v. Bloechle, 739 F.2d 239, 243 (6th Cir.1984) and Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984). The Supreme Court has yet to decide this question. See Steven H. Steinglass, Wrongful Death Actions and Section 1983, 60 Ind.L.J. 559, 565 (1985). This court first addressed the issue of wrongful death recovery under § 1983 in Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir.1961). In Brazier, a widow sued for the wrongful death of her husband, allegedly beaten to death by a County Sheriff and other police officers. The widow sought damages to compensate the estate for injuries incurred by her husband. She also sought compensation for the pecuniary loss that she suffered from her husband’s death. Brazier, 293 F.2d at 402 n. 1. This court held that 42 U.S.C. § 1988 incorporated both Georgia’s survival statute and Georgia’s wrongful death statute to provide full remedies for violations of constitutional rights. Id. at 409. The Brazier court reasoned that, unless the decedent’s cause of action survived his death, the remedies provided by § 1983 would fail when the injury is death. Id. at 407-09. The court concluded that such an anomalous result indicated that the remedies under § 1983 were deficient without the support of state law. The court held that § 1983 incorporated Georgia’s wrongful death and survival statutes as remedies under § 1983. Id. Much of Brazier’s discussion concerned the survival of the decedent’s claim, as opposed to the widow’s right to recover for her own injuries arising out of her husband’s death. However, the court held that both Georgia’s wrongful death and survival statutes were incorporated into federal law under § 1988, stating “Since Georgia now provides both for survival of the claims which the decedent had for damages sustained" }, { "docid": "14506524", "title": "", "text": "not authoritative with respect to other federal causes of action, because of the peculiar statutory scheme involved in civil rights actions. 42 U.S.C. § 1988 specifically refers federal courts to state law in filling in the interstices in federal civil rights actions, unless the state law would be inconsistent with federal law. This special statute thus makes survival of federal civil rights actions a matter of state law, at least in the first instance. This has been made clear recently in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). However, TILA contains no provision similar to 42 U.S.C. § 1988. We are not aware of any cases which have directly considered the question whether a TILA action survives the death of the debtor plaintiff. However, two cases, Murphy v. Household Finance Corp., 560 F.2d 206 (6th Cir. 1977), and Porter v. Household Finance Corp., 385 F.Supp. 336 (S.D.Ohio 1974), have given indirect consideration to this question. In Murphy and Porter the question presented was whether such an action passed to a trustee in bankruptcy. In deciding this question, both courts found it necessary to analyze whether a TILA action would survive the death of the debtor plaintiff. The Murphy and Porter courts used thoughtful and well-reasoned analysis in concluding that a TILA action would survive. The general rule is that actions for penalties do not survive the death of the plaintiff. Schreiber v. Sharpless, 110 U.S. 76, 28 L.Ed. 65 (1884). There is no question that TILA creates a cause of action for a civil penalty. Congress has so labeled the action, and the Supreme Court has also used this descriptive term. But this does not end the analysis. It still must be determined whether the TILA action is penal for the purpose of determining survival. The problem, simply put, is that the term “penal” is used in different contexts to mean different things. There are three factors which should be considered in determining whether the TILA action is penal for survival purposes: (1) whether the purpose of the action is to redress individual wrongs" }, { "docid": "840895", "title": "", "text": "not explicitly provide for the survival of a civil rights action. Defendants’ contention is without merit. Congress has provided that: “[I]n all cases where [federal statutes for the protection of civil rights] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . ., the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . Civil Rights Act of 1866, 42 U.S.C. § 1988. This provision has been held to fill the gap in § 1983 caused by the death of a victim by authorizing adoption of state survival statutes. This conclusion derives from the history and purpose of the Civil Rights Acts as a means of redress for deprivations of constitutional rights. As the Court of Appeals explained in Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961): “[I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple.” [Footnote omitted.] The line of cases reaching this conclusion has been cited with approval by the Supreme Court. See Moor v. County of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Pennsylvania law provides for the survival of actions. Pennsylvania Survival Act, 20 Pa.C.S.A. §§ 3371 et seq. It is therefore clear that plaintiff may sue in her representative capacity to redress deprivations of decedent’s civil" } ]

[ { "docid": "7609580", "title": "", "text": "of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other commuting magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” . Other courts have applied ejusdem generis to section 1503, however, reading the omnibus clause in a manner similar to that suggested by the defendant. See United States v. Ryan, 9 Cir. 1972, 455 F.2d 728, 733; United States v. Metcalf, 9 Cir. 1970, 435 F.2d 754, 756-57; United States v. Essex, 6 Cir. 1969, 407 F.2d 214, 218. . Several courts have held that persons who destroy evidence relevant to judicial proceedings violate § 1503. See, e. g., United States v. Walasek, 3 Cir. 1975, 527 F.2d 676; United States v. Weiss, 2 Cir. 1974, 491 F.2d 460, cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59. . Indeed, we defined the statutory term “administration of justice” as “the performance of acts required by law in the discharge of duties such as appearing as a witness and giving truthful" } ]

[ { "docid": "7985099", "title": "", "text": "“harassing” can reasonably be seen as an endeavor on the part of defendant to interpose his opinion into matters which were ultimately the sole province of the jury. We are satisfied that the evidence amply supports the jury’s essential finding of defendant’s specific intent to impede or influence the due administration of justice in this case. See Leffler v. United States, 409 F.2d 44, 50-51 (8th Cir. 1969). Appellant contends the trial court erred in denying his motion for judgment of acquittal on the grounds that the actions of the appellant did not fall within the scope of 18 U.S.C. § 1503. Initially, he contends that Mrs. Turner and Mr. Greer were not petit jurors and thus not within the proscription of the statute. It is abundantly clear that a veniremen comes within the proscription of the statute. In United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553 (1921), the Supreme Court reversed a dismissal of an indictment which charged the defendant with endeavoring to corruptly influence a petit juror “though he was not yet selected or sworn.” A venireman is a prospective juror. United States v. Haldeman, 181 U.S.App.D.C. 254, 282 n.27, 559 F.2d 31, 59 n.27 (D.C.Cir.1976). Thus, appellant’s contention that the trial court erred in instructing the jury that venireman comes within the scope of 18 U.S.C. § 1503 is devoid of merit. It is also clear that the statute makes an offense of any proscribed “endeavor.” In Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), the Supreme Court pointed out the significance of the word “endeavor” by quoting from United States v. Russell, supra: “The word of the section is ‘endeavor,’ and by using it the section got rid of the technicalities which might be urged as besetting the word ‘attempt,’ and it describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent. . . . The section ... is not directed at success in corrupting a juror, but at the ‘endeavor’ to do so. Experimental" }, { "docid": "5655604", "title": "", "text": "District Court for the Southern District of New York, * * Count I charges a conspiracy between the defendants and Mary Manna corruptly to influence, obstruct and impede the administration of justice and to endeavor to do so, and alleges, among the overt acts in furtherance of the conspiracy, the various specific violations of Section 1503 charged in Counts II to VI. The defendants attack the sufficiency of these counts on several related grounds. They first assert that the failure to allege in specific terms that the documents, notes or papers with which defendants’ acts were concerned were “material” to the grand jury investigation makes these counts fairly defective. Section 1503 under which the five substantive counts are laid deals with interference with or obstruction of the due administration of justice and endeavors so to do. The first portion of the section is for the protection of witnesses, jurors and court officers. It condemns those who corruptly or by threats or force endeavor to influence, intimidate, impede or injure such persons. The latter portion of the statute deals generally with the obstruction of justice. It condemns the corrupt influencing, obstructing or impeding of the due administration of justice and corruptly endeavoring to do so. Success is not the criterion of the statute though it may aggravate the offense. Thomas v. United States, 8 Cir., 15 F.2d 958; Bedell v. United States, 8 Cir., 78 F.2d 358, certiorari denied 296 U.S. 628, 56 S.Ct. 151, 80 L.Ed. 447. The statute condemns “any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent.” United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 261, 65 L.Ed. 553; Broadbent v. United States, 10 Cir., 149 F.2d 580, 581. The indictment follows the specific language of Section 1503 and also spells out in detail the specific acts with which defendants are charged. It is fully adequate under Federal Rules of Criminal Procedure, rule 7(c) to inform defendants of the essential facts constituting the offenses with which they are charged by any standards. United States v. Achtner," }, { "docid": "23471724", "title": "", "text": "station and inquired about the truck, while circumstantial, was compelling. This evidence included testimony (1) that the Arco station owner, upon learning that the government agents were inquiring about the truck, attempted to reach Betti; (2) that Betti’s brother-in-law relayed the station owner’s telephone number to his wife, who in turn gave it to Betti; (3) that Betti then made a telephone call in which she asked who was inquiring about the truck; (4) that Betti’s husband asked her to go to the Arco station and Betti said she would; (5) that Betti shortly thereafter borrowed a green car with a vinyl roof; and (6) that a woman in a green car with a vinyl roof arrived at the Arco station and asked the attendant if he was the person she had spoken to. These facts provided an ample basis for the jury to find that the woman in the green car was Betti. Betti’s argument that the acts attributed to her did not amount to an endeavor to obstruct the grand jury investigation presents a somewhat closer question. Section 1503 provides that whoever “corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5000 or imprisoned not more than five years, or both.” The use of the term “endeavor[]” in this statute and its predecessor has been interpreted as embodying a concept less technical than that normally associated with an “attempt.” The Court has construed the word “endeavor” as “describing] any effort or essay to accomplish the evil purpose that the section was enacted to prevent.” United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 261, 65 L.Ed. 553 (1921); Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 434, 17 L.Ed.2d 394 (1966). In Russell, the Supreme Court considered the actions of an attorney who asked the wife of a possible juror to ascertain her husband’s attitude toward the lawyer’s client, stating that they did not want to pay money to any jurors at the trial unless they knew those jurors would favor acquittal. The" }, { "docid": "7985098", "title": "", "text": "show any specific intent. Furthermore, the circumstantial evidence fails to establish specific intent. His contact with the potential jurors was of a casual nature. He did not threaten or bribe either prospective juror or tell them how to vote. In sum, he argues that there is not sufficient relevant evidence in this case from which a reasonable mind could conclude that appellant acted with specific intent. We disagree. There was substantial evidence from which the jury could reasonably conclude that appellant willfully, knowingly, and with specific intent sought to influence the named members of the jury panel to abrogate his or her legal duties as a juror. The testimony of Mr. Greer and Mrs. Turner reveals statements made by the defendant which a reasonable person might well conclude were an attempt to influence a juror in the discharge of his or her duties. Since it is a juror’s duty to render a verdict based on the evidence presented at the trial, the defendant’s description of the government’s case against Mr. Tilley as “tormenting,” “railroading” and “harassing” can reasonably be seen as an endeavor on the part of defendant to interpose his opinion into matters which were ultimately the sole province of the jury. We are satisfied that the evidence amply supports the jury’s essential finding of defendant’s specific intent to impede or influence the due administration of justice in this case. See Leffler v. United States, 409 F.2d 44, 50-51 (8th Cir. 1969). Appellant contends the trial court erred in denying his motion for judgment of acquittal on the grounds that the actions of the appellant did not fall within the scope of 18 U.S.C. § 1503. Initially, he contends that Mrs. Turner and Mr. Greer were not petit jurors and thus not within the proscription of the statute. It is abundantly clear that a veniremen comes within the proscription of the statute. In United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553 (1921), the Supreme Court reversed a dismissal of an indictment which charged the defendant with endeavoring to corruptly influence a petit juror “though" }, { "docid": "9466495", "title": "", "text": "and a jury determination of whether he had lied. In re Michael, 326 U.S. at 226-227, 66 S.Ct. at 79. . The operative wording of the statute is \"corruptly endeavor.” Such an endeavor need not be successful. United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 261, 65 L.Ed. 553 (1921) (holding that a defense attorney’s questioning the wife of a potential petit juror as to whether her husband favored an acquittal of the defendant and asking her to ask him, constituted a sufficient \"endeavor” to corrupt a juror under the statute; \"the section, however, is not directed at success in corrupting a juror but at the 'endeav- or' to do so”). . The Circuits disagree whether perjured or false testimony can form a basis for an obstruction of justice charge under § 1503. The Sixth Circuit in Essex, supra, determined that false testimony is not, per se, obstruction of justice. The Ninth Circuit, in the case of United States v. Aguilar, 994 F.2d 609, 637 (9th Cir.), factually similar to the case at hand, concluded that false statements to the FBI did not constitute obstruction of justice because FBI investigations are not judicial proceedings, lying to a potential grand jury witness does not imply a corrupt influence or persuasion of that witness, evidence was lacking that the FBI was acting on behalf of the grand jury, and such false testimony must be prosecuted under 18 U.S.C. § 1001, not § 1503), reh'g en banc granted (1993). United States v. Wood, 958 F.2d 963 (10th Cir.1992), is in accord with our holding. That case reversed the dismissal of an indictment which had alleged that a false statement was given to FBI agents in an endeavor to impede the administration of justice by preventing a grand jury, for which the ■ FBI agents were working, from \"learning the true facts and purpose concerning Paul D. Wood’s conveyance of ... [an] automobile.” On remand, the district court again dismissed the indictment, and in United States v. Wood, 6 F.3d 692 (10th Cir.1993), the court affirmed the dismissal but did so" }, { "docid": "13043213", "title": "", "text": "v. Brimberry, 744 F.2d 580, 583 (7th Cir.1984) (citing Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 435, 17 L.Ed.2d 394 (1966) (where defendant Osborn allegedly employed informer to contact prospective juror, fact that informer never intended to carry out scheme did not preclude defendant’s conviction for endeavoring to bribe juror)). See also United States v. Rosner, 485 F.2d 1213, 1228 (2d Cir.1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed. 2d 672 (1974). Thus, Dembitz’ fictitious identity as a grand jury witness does not exonerate Bucey from his “endeavor” to influence the proper administration of the grand jury. In addition, viewing the evidence in the light most favorable to the government, we think it was sufficient for the jury to conclude that Bucey possessed the requisite corrupt intent to influence the administration of justice. This court elucidated the requisite intent element for obstruction of justice offenses in United States v. Machi, 811 F.2d 991 (7th Cir.1987), and aligned itself with the Fourth Circuit: In our view, the defendant need only have had knowledge or notice that success in his fraud would have likely have [sic] resulted in an obstruction of justice. Notice is provided by the reasonable foreseeability of the natural and probable consequences of one’s acts. Id. at 998 (quoting United States v. Neiswender, 590 F.2d 1269, 1273 (4th Cir.1979)). Bucey, who had been apprised of the ongoing grand jury investigation and of the subpoena purportedly issued to Dembitz, counseled Dembitz on how to role-play his grand jury testimony with his attorney and instructed Dembitz to provide false and misleading testimony to the grand jury. We think a jury could readily infer that Bucey had knowledge or notice that the success of his fraudulent endeavor would likely influence the just administration of the grand jury proceedings. See United States v. Shannon, 836 F.2d 1125 (8th Cir.) (sustaining obstruction of justice conviction based upon defendant’s advice to former bank teller, who was prospective grand jury witness, that it would be “in her best interest” to forget about any large currency transactions which she had" }, { "docid": "23128748", "title": "", "text": "panel concerning government activity in the creation of crime, we note that the activities in Archer were alleged corruption of a state official in connection with a purported state crime, the federal jurisdiction being attenuated to the point of contrived fiction. The activities of the federal agents, indeed, the whole concept, involved the purported commission of state crimes to lure the Assistant District Attorney there involved. In the instant case there was no independent crime, no perjury before a Grand Jury and no substantive criminal conduct as a step to ultimate enticement of the defendant. Impossibility of Success. The last argument is that the crimes of conspiracy, of endeavoring to obstruct justice and of bribery were not legally capable of attainment, since the Government knew what was going on all the time. Appellant cites United States v. Berrigan and McAllister, 482 F.2d 171 (3 Cir. 1973) in support. There the conviction of Father Berrigan and Sister McAllister for violation of 18 U.S.C. § 1791 and 28 C.F.R. § 6.1 by attempting to take something out of a federal penal institution “without the knowledge and consent of the warden” was reversed. Appellant’s citation is wide of the mark. The obstruction of justice statute, 18 U.S.C. § 1503, defines the offender as one who “endeavors” — not one who “attempts” — to influence an officer in the performance of his duty, or as one who “endeavors to influence, obstruct, or impede the due administration of justice.” In Osborn v. United States, 385 U.S. 323, 332, 87 S.Ct. 429, 434, 17 L.Ed.2d 394 (1966), the Supreme Court said, “[w]hatever continuing validity the doctrine of ‘impossibility’, with all its subtleties, may continue to have in the law of criminal attempt, that body of law is inapplicable here. The statute [18 U.S.C. § 1503] under which the petitioner was convicted makes an offense of any proscribed endeavor . . . . [footnote omitted; citing United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 65 L.Ed.2d 553]. Conspiracy, of course, is an agreement plus an overt act, and the possibility of success has never" }, { "docid": "23471725", "title": "", "text": "a somewhat closer question. Section 1503 provides that whoever “corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5000 or imprisoned not more than five years, or both.” The use of the term “endeavor[]” in this statute and its predecessor has been interpreted as embodying a concept less technical than that normally associated with an “attempt.” The Court has construed the word “endeavor” as “describing] any effort or essay to accomplish the evil purpose that the section was enacted to prevent.” United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 261, 65 L.Ed. 553 (1921); Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 434, 17 L.Ed.2d 394 (1966). In Russell, the Supreme Court considered the actions of an attorney who asked the wife of a possible juror to ascertain her husband’s attitude toward the lawyer’s client, stating that they did not want to pay money to any jurors at the trial unless they knew those jurors would favor acquittal. The attorney argued to the Court that his purpose was to learn the potential juror’s attitude only in preparation for a bribe offer, but that his actions did not go so, far as to constitute a solicitation, and hence were not an “endeav- or.” The Court rejected this contention, finding that such an experimental approach to the corruption of a juror constituted an “endeavor” within the meaning of the statute. The evidence established that Betti’s actions on June 28 also fit within this construction of the term “endeavor.” Preliminarily, there is no question that Betti knew there was an ongoing grand jury investigation. On June 19, the day after her husband was arrested, she had gone to the police station and gotten his car, which had attached to its dashboard a search warrant stating that the car had been searched for explosives. A few days later, Betti herself was served with a grand jury subpoena and was informed that the investigation related to recent bombings in Rochester. With this background, on June 28, she (a) telephoned" }, { "docid": "11245415", "title": "", "text": "us how the relevance of the testimony, vis-a-vis, the grand jury investigation, affects Nicosia’s subjective intent. See United States v. Simmons, 591 F.2d 206 (3d Cir. 1979). The District Court did not take away from the jury the question of specific intent. We reject the contention. Nicosia also asserts that § 1503 was not intended to make criminal acts or actions which have no potential for obstructing justice and tendered an instruction to that effect. The District Court rejected the instruction and in lieu thereof instructed the jury that: “[I]f you find beyond a reasonable doubt that the defendant willfully, knowingly, and corruptly endeavored to influence, obstruct or impede the due administration of justice, it does not matter if the result intended by the defendant was impossible to obtain. The law prohibits the endeavor to obstruct justice and does not require that the due administration of justice was or could be influenced, obstructed, or impeded by the conduct of the defendant charged in Count III.” The District Court’s rejection of the tendered instruction was correct and the instruction given is approved. Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 434, 17 L.Ed.2d 394 (1966); United States v. Shoup, 608 F.2d 950, 962-63 (3d Cir. 1979); United States v. Jackson, 607 F.2d 1219, 1223 (8th Cir. 1979), cert. denied, 444 U.S. 1080, 100 S.Ct. 1032, 62 L.Ed.2d 763 (1980); United States v. Mitchell, 514 F.2d 758, 761 (6th Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 86, 46 L.Ed.2d 68 (1975); Unit ed States v. Rosner, 485 F.2d 1213, 1228-29 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974). Issue 4. Nicosia asserts that the indictment is invalid because it failed to inform him of the conduct which constitutes the offense. A request for a bill of particulars was denied. Contrary to his claim that the language of the indictment was only conclusory, it actually lists the precise lies that Nicosia instructed Leahu to tell the grand jury. Nicosia’s argument on this issue is specious. The District Court amended the indictment to" }, { "docid": "1541155", "title": "", "text": "under the omnibus clause, the government must prove that he (1) corruptly or by threats, (2) endeavored, (3) to influence, obstruct, or impede the due administration of justice. Brand, 775 F.2d at 1465; United States v. Perkins, 748 F.2d 1519, 1528 (11th Cir.1984); Silverman, 745 F.2d at 1392. “Corruptly” describes the specific intent of the crime and can vary in meaning with the context of the section 1503 prosecution. Brand, 775 F.2d at 1465. Generally, the government must show that the defendant knowingly and intentionally undertook an action from which an obstruction of justice was a reasonably foreseeable result. Silverman, 745 F.2d at 1393. Although the government is not required to prove that the defendant had the specific purpose of obstructing justice, Silverman, 745 F.2d at 1393, it must establish that the conduct was prompted, at least in part, by a “corrupt motive.” Brand, 775 F.2d at 1465; United States v. Howard, 569 F.2d 1331, 1336 n. 9 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). The “endeavor” element of the offense describes any attempt or effort to obstruct justice. See Brand, 775 F.2d at 1465. It is not necessary that an individual succeed in actually obstructing justice to violate section 1503. Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 434-35, 17 L.Ed.2d 394 (1966); see United States v. Fields, 838 F.2d 1571, 1575 (11th Cir.1988). As the Eleventh Circuit noted in Silverman, “a section 1503 offense is complete when one corruptly endeavors to obstruct or impede the due administration of justice; the prosecution need not prove that the due administration of justice was actually obstructed or impeded.” 745 F.2d at 1395 (emphasis original). The final element of a section 1503 violation describes the characteristics of the conduct prohibited by the statute. Under the omnibus clause, an individual is prohibited from engaging in any activity constituting an effort to influence, obstruct, or impede the due administration of justice. The action taken by the defendant does not need to directly and immediately obstruct justice to be prohibited by section 1503. The defendant’s" }, { "docid": "16816331", "title": "", "text": "(citations omitted). Barfield was convicted of the specific portion of 18 U.S.C. § 1503, known as the omnibus clause, which deals with a person who “corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice.” This court has considered this section of § 1503 previously. It is clear that the “omnibus clause is broad enough to encompass ‘any act committed corruptly, in an endeavor to impede or obstruct justice.’ ” United States v. Thomas, 916 F.2d 647, 650 (11th Cir.1990) (quoting United States v. Brand, 775 F.2d 1460, 1465 (11th Cir.1985)) (citations omitted). In order to obtain a conviction under the omnibus clause, the government must prove that the defendant (1) endeavored, (2) to influence, obstruct or impede the due administration of justice; (3) in a coiTupt manner or by threats. Id. The “endeavor” component of the offense “describes any effort or assay” to obstruct justice. Brand, 775 F.2d at 1465. Success is not a necessary component of a sufficient section 1503 violation. Thomas, 916 F.2d at 651 (citing Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 434-35, 17 L.Ed.2d 394 (1966)) (citation omitted). In fact, this court has held that “a section 1503 offense is complete when one corruptly endeavors to obstruct or impede the due administration of justice; the prosecution need not prove that the due administration of justice was actually obstructed or impeded.” United States v. Silverman, 745 F.2d 1386, 1395 (11th Cir.1984) (emphasis in the original). Concerning the actual conduct prohibited by the statute, an individual may not participate in an activity that is an effort to influence, obstruct, or impede the due administration of justice. “The action taken by the defendant does not need to directly and immediately obstruct justice to be prohibited by section 1503. The defendant’s conduct must be such, however, that its natural and probable effect would be the interference with the due administration of justice.” Thomas, 916 F.2d at 651 (citations omitted). False testimony may provide the basis for a section 1503 conviction. Thomas, 916 F.2d at 652. Yet the Supreme Court has stated clearly" }, { "docid": "5275007", "title": "", "text": "in fact impede its investigation, successful obstruction of justice is not an element of either § 371 or § 1503. As developed in part II, a conspiracy is complete upon the formation of the agreement and the execution of any act in furtherance of the agreement. Similarly, one may endeavor to obstruct justice without actually succeeding in that endeavor. In Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), the Supreme Court affirmed an attorney’s conviction under § 1503 for instructing a police officer to bribe a prospective juror in a federal criminal trial. The Court held that the word endeavor “ ‘describes any effort or essay to accomplish the evil purpose that the statute was enacted to prevent. . The section ... is not directed at success in corrupting a juror but at the “endeavor” to do so.’ ” Id. at 333, 87 S.Ct. at 435 (quoting United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 65 L.Ed. 553 (1921)). Shoup’s statements to Goldsmith about obtaining repair business from Tartaglione, his willingness to alter his supposedly impartial evaluation in order to curry Tartaglione’s favor, and his statement to Tartaglione that the Mayor of Camden wanted the Mayor of Philadelphia to have the opportunity to strike anything unfavorable in his report together demonstrate a pattern of activity designed to thwart the government’s investigation of the City Commissioners’ role in the alleged voting fraud. Therefore, we hold that the evidence supports the jury’s conclusion that Shoup conspired with Goldsmith for the purpose of impeding the grand jury’s investigation, and that Shoup endeavored to obstruct justice within the meaning of § 1503. IV. Inasmuch as we have carefully reviewed the other contentions raised by Shoup and find them to be without merit, we shall address these claims more briefly than we have the first two. Shoup contends that it was legally impossible for him to violate § 371 and § 1503 because (1) he did not conceal anything from the United States Attorney, and (2) he cannot be held criminally liable for expressing his opinion" }, { "docid": "19365960", "title": "", "text": "obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both. 18 U.S.C. § 1503. Mr. Barber submits that the district court erred in concluding that his forged letters satisfied the section 1503 requirement of influencing, obstructing, or impeding the due administration of justice on the ground that, under the sentencing statute, the letters could not have had the effect of impeding McFarland’s sentencing. See Appellant’s Br. at 27-31. We cannot accept this submission. The false letters establish that the defendant, in mailing the letters to the sentencing judge, acted “corruptly.” See United States v. Machi, 811 F.2d 991, 996 (7th Cir.1987) (defining “corruptly” to mean “with ‘a wrongful design to acquire pecuniary or other advantage’ ... [and] that the act must be done with the purpose of obstructing justice”) (quoting United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.1981) (quoting Black’s Law Dictionary 414 (4th ed. 1968)), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982)). They also constituted an “endeavor” to influence McFarland’s sentencing. See Osborn v. United States, 385 U.S. 323, 332-33, 87 S.Ct. 429, 434-35, 17 L.Ed.2d 394 (1966) (rejecting impossibility defense to endeavor requirement of section 1503). In sentencing criminal defendants, the district court specifically is authorized to consider the need “to provide just punishment for the offense,” 18 U.S.C. § 3553(a)(2)(A), and “the need to provide restitution to any victims of the offense,” id. at § 3553(a)(7). Accordingly, letters from a defendant’s victims could properly be considered by the district court; Mr. Barber’s false letters, had they not been found out, could have altered the district court’s sentencing of McFarland. The district court correctly determined that Mr. Barber violated section 1503 while on probation. The district court certainly did not abuse its discretion in revoking the defendant’s probation and sentencing him to five years’ imprisonment on the bankruptcy charges. The judgment of the district court in Appeal No. 88-2912 is affirmed. CONCLUSION The district court did not abuse its discretion" }, { "docid": "5275006", "title": "", "text": "weeks. On November 21, Shoup and Goldsmith agreed to forward a copy of the draft report to Tartaglione, and on November 29, Shoup and Tartaglione had their meeting. The evidence demonstrates that the investigations by the United States Attorney and by the grand jury were conducted jointly. Shoup knew that his report would likely be submitted to the grand jury and that he would be called to testify about his findings. Shoup’s actions, the testimony establishes, were taken during a pending judicial investigation and, had he accomplished his goals, they would have affected the grand jury’s inquiry into the alleged voting fraud. Accordingly, we hold that, to the extent Shoup endeavored to impede the investigation conducted by the United States Attorney, he obstructed justice within the purview of § 1503. We are also persuaded that there was substantial evidence to support the jury’s finding that Shoup endeavored to obstruct justice and conspired to obstruct justice under § 371 and § 1503. Although Shoup’s report was never submitted to the grand jury, and therefore did not in fact impede its investigation, successful obstruction of justice is not an element of either § 371 or § 1503. As developed in part II, a conspiracy is complete upon the formation of the agreement and the execution of any act in furtherance of the agreement. Similarly, one may endeavor to obstruct justice without actually succeeding in that endeavor. In Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), the Supreme Court affirmed an attorney’s conviction under § 1503 for instructing a police officer to bribe a prospective juror in a federal criminal trial. The Court held that the word endeavor “ ‘describes any effort or essay to accomplish the evil purpose that the statute was enacted to prevent. . The section ... is not directed at success in corrupting a juror but at the “endeavor” to do so.’ ” Id. at 333, 87 S.Ct. at 435 (quoting United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 65 L.Ed. 553 (1921)). Shoup’s statements to Goldsmith about obtaining repair" }, { "docid": "4509815", "title": "", "text": "* officer in or of any court of the United States * * * or who corruptly * * * shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein” shall be subject to a fine or imprisonment or both. It is evident that our chief point of inquiry herein concerns the words “corruptly endeavor.” Does one corruptly endeavor to obstruct justice if for supposedly disinterested reasons, though actually in expectation of financial gain, he uses what influence he_ has with the District Attorney to secure favorable disposition of a pending criminal case? Exact precedents appear to be lacking, but the decisions under the statute are illuminating in their unwillingness to limit the court’s protection from improper obstructions. In United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553, it is pointed out that the “endeavor,” not the corruption — there of a juror- — was the gist of the offense, and hence that “experimental approaches” towards offering a juror a bribe, in the shape of inquiries, made of his wife before he had been selected or sworn, concerning his attitude towards the accused, constituted the offense. That success in the endeavor is not necessary is also held in Thomas v. United States, 8 Cir., 15 F.2d 958, while Bedell v. United States, 8 Cir., 78 F.2d 358, certiorari denied 296 U.S. 628, 56 S.Ct. 151, 152, 80 L.Ed. 447, states the converse, namely, that, while success in corruption is not a necessary ingredient, nevertheless it is an aggravation of the crime. In Sinclair v. United States, supra, 279 U.S. at pages 762, 765, 49 S.Ct. 471, at page 475, 73 L.Ed. 938, 63 A.L.R. 1258, the decision goes on the other or contempt section of the original statute, though the court cites this section as seemingly also in point. It held there was an obstruction of justice in the systematic shadowing of jurors, though unknown, and without approach, to any one of them. The court, referring to the contention that to establish misbehavior under the contempt section “it" }, { "docid": "7985100", "title": "", "text": "he was not yet selected or sworn.” A venireman is a prospective juror. United States v. Haldeman, 181 U.S.App.D.C. 254, 282 n.27, 559 F.2d 31, 59 n.27 (D.C.Cir.1976). Thus, appellant’s contention that the trial court erred in instructing the jury that venireman comes within the scope of 18 U.S.C. § 1503 is devoid of merit. It is also clear that the statute makes an offense of any proscribed “endeavor.” In Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), the Supreme Court pointed out the significance of the word “endeavor” by quoting from United States v. Russell, supra: “The word of the section is ‘endeavor,’ and by using it the section got rid of the technicalities which might be urged as besetting the word ‘attempt,’ and it describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent. . . . The section ... is not directed at success in corrupting a juror, but at the ‘endeavor’ to do so. Experimental approaches to the corruption of a juror are the ‘endeavor’ of the section.” United States v. Russell, 265 U.S. 138, 143, 41 S.Ct. 260, 261, 65 L.Ed. 553. In both Osborn and Russell the endeavor to bribe a prospective juror was made through an intermediary. The juror was not actually contacted. Nevertheless, the Supreme Court held there was an endeavor within the proscription of the statute. Thus, appellant’s further claim that any obstruction of the due administration of justice would be limited to intimidating actions is without merit. The gist of the offense is the corrupt endeavor. See United States v. Cioffi, 493 F.2d 1111, 1118-19 (2d Cir.), cert. denied, 419 U.S. 917, 95 S.Ct. 195, 42 L.Ed.2d 155 (1974). A non-coercive but corrupt attempt to influence is within the conduct proscribed by section 1503. See United States v. Walasek, 527 F.2d 676, 679 n.9 (3d Cir. 1975). As indicated in Russell, success in the endeavor to corrupt is not essential. Appellant further contends that the trial court erred in denying his motions for a" }, { "docid": "13034963", "title": "", "text": "commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any theaten-ing letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 1503. This statute mirrors the national concern with preserving the integrity of the jury trial as the cornerstone of this nation’s criminal law. Under its terms it is obvious that Congress has intended not merely to make successful bribing of a juror a crime, but likewise to make it a criminal offense to do any act which has the ultimate bribing of a juror as its purpose. Defendant herein contends first, that what he did, did not constitute violation of this statute, and second that if it did, he was entrapped into doing it. The principal interpretations of this statute have been made by the United States Supreme Court in United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553 (1921); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). (See also United States v. Gosser, 339 F.2d 102 (C.A.6, 1964)). In these cases the following principles were laid down pertaining to the substantive offense and to the defense of legal entrapment. In" }, { "docid": "23128749", "title": "", "text": "of a federal penal institution “without the knowledge and consent of the warden” was reversed. Appellant’s citation is wide of the mark. The obstruction of justice statute, 18 U.S.C. § 1503, defines the offender as one who “endeavors” — not one who “attempts” — to influence an officer in the performance of his duty, or as one who “endeavors to influence, obstruct, or impede the due administration of justice.” In Osborn v. United States, 385 U.S. 323, 332, 87 S.Ct. 429, 434, 17 L.Ed.2d 394 (1966), the Supreme Court said, “[w]hatever continuing validity the doctrine of ‘impossibility’, with all its subtleties, may continue to have in the law of criminal attempt, that body of law is inapplicable here. The statute [18 U.S.C. § 1503] under which the petitioner was convicted makes an offense of any proscribed endeavor . . . . [footnote omitted; citing United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 65 L.Ed.2d 553]. Conspiracy, of course, is an agreement plus an overt act, and the possibility of success has never been thought to be of its essence. (United States v. Kellerman, 431 F.2d 319 (2 Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970).) Bribery, as defined in 18 U.S.C. § 201(b), prohibits offering anything of value to a public official. We have said that “[s]eetion 201(b) is violated even though the official offered the bribe is not corrupted, or the object of the bribe could not be attained . ” United States v. Jacobs, 431 F.2d 754, 759-760 (2 Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 reh. denied, 403 U.S. 912, 91 S.Ct. 2210, 29 L.Ed.2d 690 (1971). For the foregoing reasons the conviction will be affirmed. V. The Sentencing Procedure. The appellant contends that the procedure followed on his sentencing requires a remand for resentencing. We agree. The sentencing judge received a memorandum from the United States Attorney’s office, which the Probation Department did not screen or verify, consisting of sixteen closely typed pages and appendices, outlining alleged “possible misrepresentations, fraudulent conduct, lying," }, { "docid": "4509814", "title": "", "text": "they were guilty of attempting to secure money by false pretenses, they were not guilty of any offense under the statute in question, 18 U.S.C.A. § 241; and they cite a statement from Rosner v. United States, 2 Cir., 10 F.2d 675, 676, to the effect that an intended bribery or an attempt to obtain money under false pretenses is not this statutory offense. The statute, 18 U.S.C.A. § 241, goes back to § 2 of the Act of Mar. 2, 1831, 4 Stat. 487, 488, of which § 1 — now 28 U.S.C. A. § 385 — defined the power of the United States courts to punish for contempt. See Sinclair v. United States, 279 U.S. 749, 762, 49 S.Ct. 471, 73 L.Ed. 938, 63 A.L.R. 1258; Ex parte Savin, 131 U.S. 267, 274, 9 S.Ct. 699, 33 L.Ed. 150; United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied 61 S.Ct. 1103, 85 L.Ed. -. It provides that “whoever corruptly * * shall endeavor to influence, intimidate, or impede any * * * officer in or of any court of the United States * * * or who corruptly * * * shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein” shall be subject to a fine or imprisonment or both. It is evident that our chief point of inquiry herein concerns the words “corruptly endeavor.” Does one corruptly endeavor to obstruct justice if for supposedly disinterested reasons, though actually in expectation of financial gain, he uses what influence he_ has with the District Attorney to secure favorable disposition of a pending criminal case? Exact precedents appear to be lacking, but the decisions under the statute are illuminating in their unwillingness to limit the court’s protection from improper obstructions. In United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553, it is pointed out that the “endeavor,” not the corruption — there of a juror- — was the gist of the offense, and hence that “experimental approaches” towards offering a juror a bribe, in the" }, { "docid": "13952901", "title": "", "text": "person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision [i.e., other necessary governmental personnel]” [emphasis added]. It is simply illogical to attempt to construe Rule 6(e)(2) as mandating that all other classes of individuals can act to destroy the secrecy of grand jury proceedings without criminal sanction. II. WHETHER JETER’S ACTIVITY CONSTITUTED OBSTRUCTION OF JUSTICE UNDER 18 U.S.C. § 1503. The obstruction of justice statute, 18 U.S.C. § 1503, specifically forbids the influencing, intimidation, or impeding of any witness, juror, or court official. The statute also contains an omnibus clause, which punishes the general obstruction of the “due administration of justice.” The omnibus clause covers “whoever ... corruptly or by threats of force, or by any threatening letter of communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice” [emphasis added]. As the Second Circuit has noted, “the key words in the statute [section 1503] are ‘corruptly’ and ‘endeavors.’ ” United States v. Cioffi, 493 F.2d 1111, 1118-1119 (2d Cir.), cert. denied, 419 U.S. 917, 95 S.Ct. 195, 42 L.Ed.2d 155 (1974). The statutory language clearly encompasses “endeavors” or attempts to obstruct the administration of justice regardless of the success in actual obstruction. See United States v. Russell, 255 U.S. 138, 139-40, 41 S.Ct. 260, 65 L.Ed. 553 (1921) (construing similar language in predecessor statute); Cioffi, 493 F.2d at 1119 (“The endeavor, whether successful or not, is the gist of the offense.”). The obstruction of justice statute also contains a clear mens rea requirement that limits its scope to those who “corruptly” or intentionally seek to ob struct the due administration of justice. See Cioffi, supra, 493 F.2d at 1119. We first look to the construction of the omnibus clause in 18 U.S.C. § 1503 to determine whether it reaches the specific kind of attempt launched by Jeter. In United States v. Howard, 569 F.2d 1331 (5th Cir.), cert. denied sub nom. Ritter v. United States, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978), the Fifth Circuit cited and concurred with numerous courts embracing the view that “the" } ]

[ { "docid": "23276559", "title": "", "text": "include “(1) that the trial court has made a manifest error of fact or law, (2) that there is newly discovered evidence, or (3) that there has been a change in the law.” Dow Chem. Pac. Ltd. v. Rascator Maritime S.A., 609 F.Supp. 451, 452-53 (S.D.N.Y.1984), modified on other grounds, 782 F.2d 329 (2d Cir.1986) (citation omitted). As Judge Crow stated in a recent decision, “[A] party’s failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion to amend.” Paramount Pictures Corp. v. Video Broadcasting Sys., Inc., No. 89-1412-C, slip op. at 2, 1989 WL 159369 (D. Kan., unpublished, Dec. 15, 1989) (citing United States v. Carolina Eastern Chem. Co., Inc., 639 F.Supp. 1420, 1423 (D.S.C.1986)). The court further notes that under the “law of the case doctrine,” once issues are decided by the court, those issues should not be relitigated or reconsidered unless they are clearly erroneous or unless some manifest injustice has been imposed. This doctrine is based on public policy favoring an end to litigation and encouraging dispute resolution by preventing continued re-argument of decided issues. See Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 750 (5th Cir.1985); Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981). Upon examination of defendant’s arguments in support of its motion for reconsideration, the court finds that two of the four arguments now advanced have been previously considered by the court in the context of the January 5, 1990 Memorandum and Order. Because the court does not find its previous conclusions to have been either factually or legally erroneous, the court will not grant defendant’s motion for reconsideration on those grounds. The court further finds defendant’s argument that the court improperly applied the standards for summary judgment is meritless. Defendant’s remaining argument, raised for the first time in this motion for reconsideration, is that Emporia is entitled to raise its “good faith” reliance on administrative opinion as an absolute defense to liability under the FLSA, pursuant to 29 U.S.C. § 259. Although the court finds" } ]

[ { "docid": "8889108", "title": "", "text": "MEMORANDUM AND ORDER EARL E. O’CONNOR, Senior District Judge. This matter is before the court on plaintiffs motion for reconsideration of the court’s October 22, 1997 Memorandum and Order (Doc. # 174) and plaintiffs motion for leave to file an amended complaint (Doc. # 176). After careful consideration of the parties’ briefs and evidentiary materials, the court is prepared to rule. For the reasons stated below, plaintiffs motion for reconsideration is denied and plaintiffs motion to amend is granted. I. Sithon’s Motion For Reconsideration. A. Motion For Reconsideration Standards. A motion for reconsideration is the opportunity for the court to (1) correct manifest errors of law or fact; (2) review newly discovered evidence; or (3) review a prior decision in light of a recent change in the law. See Cross Timbers Oil Co. v. Rosel Energy, Inc., 168 F.R.D. 649, 650 (D.Kan. 1996) (citing Major v.. Benton, 647 F.2d 110, 112 (10th Cir.1981)). Appropriate circumstances for a motion to reconsider are where the court' has obviously misapprehended a party’s position on the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. See Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983), affd, 770 F.2d 98 (7th Cir.1985). A party’s failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider. Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990), affd, 948 F.2d 1529 (10th Cir.1991). The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). B. Analysis. The factual background of this matter is set forth in the court’s October 22 Order and is incorporated by reference. Sithon Maritime Company (“Sithon”) alleges in count IX of its complaint that Mercury Marine (“Mercury”) breached its contract with Sithon to repair and correct the mechanical problems with the propulsion systems in" }, { "docid": "3335105", "title": "", "text": "does not entitle it to a second chance in the form of a motion to reconsider. Id, (citing Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990)). The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. Id. (citing Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988)). Local Rule 7.3 embodies courts’ general desire to avoid upsetting the law of the case: Under the “law of the ease” doctrine, once an issue is decided by the court, it should not be reconsidered unless it is clearly erroneous or resulted in the imposition of some manifest injustice. Id. This doctrine is based on public policy favoring an end to litigation and encouraging finality in dispute resolution by preventing continued relitigation of issues once decided. See Major v. Benton, 647 F.2d at 112; Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 750 (5th Cir.1985). Id. The court first observes that the instant motion, filed some one year and two months after our May 15,1996 order denying class certification, is untimely. Plaintiffs choose to simply ignore this issue. The court finds, however, that plaintiffs’ motion, filed at this late date, fails to comport with the unambiguous ten-day deadline set forth in Rule 7.3. Such untimeliness alone is sufficient grounds to deny plaintiffs’ motion. Additionally, plaintiffs have made no showing that their circumstances fall within any of the three recognized grounds for granting reconsideration. Plaintiffs’ first articulated ground, “that discovery has closed,” simply is not sufficient justification for reconsidering our order denying class certification. Presumably, plaintiffs mean that they have discovered new facts material to class certification. Careful examination of plaintiffs’ brief, however, reveals no new facts. On page three of their brief, plaintiffs “incorporate the Statement of Facts in their previous Memorandum in Support filed on March 6, 1995.” While plaintiffs memorandum also states that it incorporates “the numerous additional facts in their Memorandum in Opposition to Defendant’s Motions for Summary Judgment filed on June 9, 1997,” in actuality, plaintiffs’ instant motion raises no new facts. Plaintiffs" }, { "docid": "12493426", "title": "", "text": "Co. v. Rosel Energy, Inc., 168 F.R.D. 649, 650 (D.Kan.1996) (citing Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981)). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party’s position on the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. See Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983), aff'd, 770 F.2d 98 (7th Cir.1985). A party cannot invoke Rule 59(e) to raise arguments or present evidence that should have been raised in the first instance, or to rehash arguments previously considered and rejected by the court. A party’s failure to present its strongest ease in the first instance does not entitle it to a second chance in the form of a motion to reconsider. See Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990), aff'd, 948 F.2d 1529 (10th Cir.1991). The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). Analysis I. Likelihood Of Success. The court previously held that Appellants cannot likely show either that (1) the bankruptcy court erred by not taking evidence at the conversion hearing or giving the Appellants abbreviated notice of the hearing or (2) any such error was prejudicial. In their motion for reconsideration, Appellants reassert their argument that an evidentiary hearing was necessary in this case. The court explained in its prior order that “a full evidentiary hearing on a conversion or dis missal motion is unnecessary when an adequate factual record already is before the bankruptcy court.” June 19 Order at 6; see A. Illum Hansen v. Tiana Queen Motel, Inc. (In re Tiana Queen Motel, Inc.), 749 F.2d 146, 150 (2d Cir.1984), cert. denied, 471 U.S. 1138, 105 S.Ct. 2681, 86 L.Ed.2d 699 (1985); Kates v. Mazzocone (In re Mazzocone), 180 B.R. 782, 785-86 (E.D.Pa.1995); Coones v. Mutual Life Ins. Co. of N.Y., 168 B.R." }, { "docid": "13719722", "title": "", "text": "motion will be denied. The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). A motion for reconsideration is the opportunity for the court to: 1) correct manifest errors of law or fact; 2) review newly discovered evidence; or 3) review a prior decision in light of a recent change in the law. Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981); see also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct 2895, 90 L.Ed.2d 982 (1986). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party’s position or the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983). A party’s failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider. Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990). Under the “law of the case” doctrine, once an issue is decided by the court, it should not be reconsidered unless it is clearly erroneous or resulted in the imposition of some manifest injustice. Id. This doctrine is based on public policy favoring an end to litigation and encouraging finality in dispute resolution by preventing continued relitigation of issues once decided. See Major v. Benton, 647 F.2d at 112; Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 750 (5th Cir.1985). In his motion for reconsideration, plaintiff sets forth numerous alleged controverted facts and urges that the court failed to properly analyze defendant’s motion for summary judgment because it failed to consider the facts in the light most favorable to plaintiff. Plaintiff misconstrues our opinion — all properly supported factual allegations have been considered in the light most favorable to plaintiff. Where plaintiff failed" }, { "docid": "8031735", "title": "", "text": "MEMORANDUM AND ORDER LUNGSTRUM, District Judge. On May 15, 1992, 1992 WL 135018, this court issued its Memorandum and Order ruling on the motions to dismiss filed by several of the defendants to this action. Both the plaintiff (Doc. #92) and defendants Rogenia Wilson, Weatherbie, Taylor, Buchman, Roberts, Nichols, Grimes, Fogo, Joeckel, Thompson, Clark, Dawson, Botcher, Bright, Tetwiler, John Wilson, Basgall, Baugher, Riggs, Conner, and the City of Paola (hereinafter “defendants”) (Doc. #82) have filed motions to reconsider that Memorandum and Order which are currently before the court. For the reasons set forth below, the court denies the plaintiffs motion to reconsider and grants in part the defendants’ motion to reconsider. A motion to reconsider gives the court an opportunity to correct manifest errors of law or fact and to review newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). A motion to reconsider is appropriate if the court has obviously misapprehended a party’s position, the facts, or mistakenly has decided issues not presented for determination. See Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983), aff'd, 770 F.2d 98 (7th Cir.1985). I. PLAINTIFF’S MOTION After reviewing the court’s previous ruling and the suggestions filed with plaintiff’s motion to reconsider, the court concludes that, with one exception, its prior ruling was correct for the reasons therein stated. Plaintiff contends that his cause of action under 42 U.S.C. § 1985 should not have been dismissed for failure to plead racial animus because such animus is not required to support a claim under the portion of section 1985(2) which precedes the semicolon. Plaintiff’s amended complaint does not clearly set forth the portion of section 1985(2) upon which he relies to support his case. If he relies upon the portion of section 1985(2) after the semicolon, his claim must be dismissed for failing to plead racial animus, as held in the court’s prior Memorandum and Order. If, however, he relies upon the portion of the section 1985(2) preceding the semicolon, he has failed to plead" }, { "docid": "14210663", "title": "", "text": "or amend the court’s Memorandum and Order filed October, 12, 1995, pursuant to Federal Rule of Civil Procedure 59(e) or, in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59(a). For the reasons set forth below, the court grants in part and denies in part defendants’ motion. II. Discussion A. Standard for motion to alter or amend A judgment can be altered or amended pursuant to Federal Rule of Civil Procedure 59(e) to correct manifest errors of fact or law, or to accept newly discovered evidence. Buell v. Security Gen’l Life Ins. Co., 784 F.Supp. 1533, 1535 (D.Colo.1992), aff'd, 987 F.2d 1467 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 308, 126 L.Ed.2d 255 (1993); Dees v. Wilson, 796 F.Supp. 474, 475 (D.Kan.1992). A motion to reconsider is appropriate if the court has obviously misapprehended a party’s position, the facts, or mistakenly has decided issues not presented for determination. See Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983), aff'd, 770 F.2d 98 (7th Cir.1985). Motions to alter or amend are directed at reconsideration, not initial consideration. Buell, 784 F.Supp. at 1535. The proper analysis was succinctly and accurately stated in United States v. One Parcel Property, No. 91-2398-GTV, 1993 WL 289198 at *1 (D.Kan. August 18, 1993): Whether to grant or deny a motion for reconsideration is committed to the court’s discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). In exercising that discretion, courts in general have recognized three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. Estate of Pidcock v. Sunnyland America, Inc., 726 F.Supp. 1322, 1333 (S.D.Ga.1989); see Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981). B. Analysis The defendants assert (1) that the court incorrectly held them liable for the hostile work environment created by Mr. Shine and Mr. Gross based on the fact that there was no evidence presented at trial that the defendants had any knowledge of the hostile work" }, { "docid": "17708707", "title": "", "text": "Motion for Reconsideration or, In the Alternative, for Certification for Appeal (doc, 58) is denied. This action remains set for a Final Pretrial Conference on January 16, 2007 at 10:30 a.m., with a bench trial to follow during the February 2007 civil term. . See also American Home Assur. Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1239 (11th Cir.1985) (cautioning against utilization of motion to reconsider to afford a litigant \"two bites at the apple”); Russell Petroleum Corp. v. Environ Products, Inc., 333 F.Supp.2d 1228, 1234 (M.D.Ala.2004) (relying on Mays to deny motion to reconsider where movant advanced several new arguments); Coppage v. U.S. Postal Service, 129 F.Supp.2d 1378, 1379-81 (M.D.Ga.2001) (similar); Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990) (\"A party's failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion to amend.”) (citation omitted). . The pragmatic policy considerations underlying these principles are that “if every question once considered and decided remained open for reexamination in subsequent proceedings in that same case, [a district] court could not efficiently or satisfactorily perform its duties.” Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 750 (5th Cir.1985). Imagine how a district court’s workload would multiply if it was obliged to rule twice on every hotly contested issue joined in a case pending before it, all because the losing party thought of new arguments it could and should have raised earlier or wanted a second crack at the same arguments it had raised previously. . In his own briefs, Mattox insisted that this ratio \"was well known in the industry, and certainly was not an invention of Bryan Gipson nor Kansas Hernandez.” (Mattox Brief (doc. 43), at 8.) . Mattox argues that the Court \"erroneously interprets” and \"misapprehends the meaning” of Ethicon on this point, and suggests the Court has confused the concepts of conception and reduction to practice. (Defendant's Brief (doc. 59), at 5-6.) On its face, the November 27 Order exhibits no such confusion, but instead expressly observes" }, { "docid": "21872328", "title": "", "text": "evidence or when there has been a change in the law. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party’s position or the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983). A party’s failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider. Paramount Pictures Corp. v. Video Broadcasting Sys., Inc., No. 89-1412-C, slip op. at 2, 1989 WL 159369 (D.Kan., unpublished, Dec. 15, 1989). Having carefully considered the plaintiffs arguments, the court has concluded that its original order was correct, for the reasons stated therein, and therefore plaintiffs motion to reconsider will be denied. For the record, the court will clarify the rationale of the rulings that have been questioned. Plaintiff urges that the company should be held vicariously liable for the outrageous conduct of her co-workers, citing Williams v. Community Drive-In Theater, 214 Kan. 359, 520 P.2d 1296 (1974), and Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan.App.2d 302, 578 P.2d 1121 (1978). By advancing a theory of “vicarious liability,” plaintiff seeks to hold the defendants liable under the doctrine of respondeat superior. The question of employer liability for the acts of employees depends upon the relation of the acts to the employer’s business: “According to the trend of modern authority, the liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was willful and intentional, but upon whether the employee, when he did the wrong, was acting in the prosecution of the employer’s business and within the scope of his authority, or had stepped aside from that business and done an individual wrong. The now generally recognized" }, { "docid": "21872327", "title": "", "text": "FURTHER ORDERED that Defendants’ Motion to Dismiss John Anspach’s Title VII Claims (Doc. # 83) is denied. IT IS FURTHER ORDERED that the parties submit to the court additional briefs addressing the applicability of the Civil Rights Act of 1991 to John’s Title VII claims, no later than ten (10) days before the first day of trial. MEMORANDUM AND ORDER This matter is before the court on the motion of plaintiff Vicki Anspach for the court to reconsider several of its rulings rendered by the court on February 11,1993. In particular, plaintiff contends that the court erred in granting summary judgment for the company defendants on her claims of intentional and negligent infliction of emotional distress. The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). It is well established that a motion for reconsideration is the opportunity for the court to correct manifest errors of law or fact and to review newly discovered evidence or when there has been a change in the law. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party’s position or the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983). A party’s failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider. Paramount Pictures Corp. v. Video Broadcasting Sys., Inc., No. 89-1412-C, slip op. at 2, 1989 WL 159369 (D.Kan., unpublished, Dec. 15, 1989). Having carefully considered the plaintiffs arguments, the court has concluded that its original order was correct, for the reasons stated therein, and therefore plaintiffs motion to reconsider will be denied. For the record," }, { "docid": "3335104", "title": "", "text": "IBP’s Finney County, Kansas or Emporia, Kansas beef processing plants. District of Kansas Local Rule 7.3 addresses motions to reconsider: A party may file a motion asking a judge or magistrate judge to reconsider an order or decision made by that judge or magistrate judge. Such motion shall be filed within ten days after the entry of the order or decision unless the time is extended by the court. A motion to reconsider shall be based on (1) an intervening change in controlling law, (2) availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice. A motion for reconsideration is the opportunity for the court to (1) correct manifest errors of law or fact; (2) review newly discovered evidence; or (3) review a prior decision in light of a recent change in the law. Cross Timbers Oil Co. v. Rosel Energy, Inc., 168 F.R.D. 649, 650 (D.Kan.1996) (citing Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981)). A party’s failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider. Id, (citing Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990)). The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. Id. (citing Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988)). Local Rule 7.3 embodies courts’ general desire to avoid upsetting the law of the case: Under the “law of the ease” doctrine, once an issue is decided by the court, it should not be reconsidered unless it is clearly erroneous or resulted in the imposition of some manifest injustice. Id. This doctrine is based on public policy favoring an end to litigation and encouraging finality in dispute resolution by preventing continued relitigation of issues once decided. See Major v. Benton, 647 F.2d at 112; Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 750 (5th Cir.1985). Id. The court first observes that the instant motion, filed some one year and two months after" }, { "docid": "12493425", "title": "", "text": "MEMORANDUM AND ORDER EARL E. O’CONNOR, District Judge. This matter is before the court on the motion of Sunflower Racing, Inc., doing business as The Woodlands (“Debtor”), and Hollywood Park, Inc., (“Hollywood Park”) to reconsider the court’s June 19, 1998 Memorandum and Order (Doc. # 12). After careful consideration of the parties’ briefs, the court is prepared to rule. As an initial matter, the court finds that oral argument would not be of material assistance in resolving the instant motion. Accordingly, Appellants’ request for oral argument is denied. For the reasons set forth below, the court will deny Appellants’ motion to reconsider. The factual background of this matter is set forth in the court’s June 19 Order at pages 2 through 4 and is incorporated by reference. Standards For Motions To Reconsider A motion for reconsideration is the opportunity for the court to (1) correct manifest errors of law or fact; (2) review newly discovered evidence; or (8) review a prior decision in light of a recent change in the law. See Cross Timbers Oil Co. v. Rosel Energy, Inc., 168 F.R.D. 649, 650 (D.Kan.1996) (citing Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981)). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party’s position on the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. See Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983), aff'd, 770 F.2d 98 (7th Cir.1985). A party cannot invoke Rule 59(e) to raise arguments or present evidence that should have been raised in the first instance, or to rehash arguments previously considered and rejected by the court. A party’s failure to present its strongest ease in the first instance does not entitle it to a second chance in the form of a motion to reconsider. See Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990), aff'd, 948 F.2d 1529 (10th Cir.1991). The decision of whether to grant or deny a motion" }, { "docid": "7090073", "title": "", "text": "reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. Martin v. MAPCO Ammonia Pipeline, Inc., 866 F.Supp. 1304, 1308 (D.Kan.1994); Marx v. Schnuck Mkts., Inc., 869 F.Supp. 895, 897 (D.Kan.1994). See also Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990)(motion to reconsider appropriate when court has obviously misapprehended party’s position, facts, or applicable law, or when party introduces new evidence that could not have been obtained through exercise of due diligence). A motion to reconsider is not a second chance for the losing party to make his strongest case or to dress up arguments that previously failed. Voelkel v. General Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir.1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992). Factual Background The Court’s order of July 23, 1998, sets forth a chronology which traces the evolution of plaintiffs claims throughout the history of this dispute, as well as a detailed summary of the factual background. See Shinwari, 16 F.Supp.2d 1308, 1311-19. In the analysis below, we address only those factual and legal issues which are relevant to plaintiffs motion for reconsideration. Analysis 1. Did The Court Improperly Dismiss Plaintiffs Retaliation Claim Under Section 1981? Upon examination of the Pretrial Order in this case, the Court determined that plaintiff had abandoned any claim of retaliation based on protected opposition to discrimination on account of color, under 42 U.S.C. § 1981. Plaintiff challenges the “dismissal” of this claim, arguing that the factual record does not support the Court’s “claim” that he opposed discrimination on the basis of age and national origin but not on the basis of color. Counts II and III of the complaint, he contends, clearly allege discrimination based on race and color. On April 20,1998, the" }, { "docid": "7090072", "title": "", "text": "MEMORANDUM AND ORDER VRATIL, District Judge. Plaintiff, a former employee of Raytheon Aircraft Company (“Raytheon”), brought suit under Section 1981, Title VII, the ADEA, and state common law, alleging employment discrimination, retaliation, and breach of contract. On July 23, 1998, the Court sustained defendant’s motions for summary judgment and partial dismissal. See Shinwari v. Raytheon Aircraft Co., 16 F.Supp.2d 1308, 1998 WL 596343 (D.Kan.1998). The matter now comes before the Court on Plaintiffs Rule 59(e) Motion To Reconsider And Thereby Alter, Amend And Vacate The Order Of Summary Judgment Entered July 24, 1998 (Doc. # 90) filed August 7,. 1998. Plaintiff contends that reconsideration is necessary to correct the Court’s misapprehension of the law and the relevant facts. For reasons set forth below, the motion is overruled. Legal Standards The Court has discretion whether to grant or deny a motion for reconsideration. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988); Torre v. Federated Mut. Ins. Co., 906 F.Supp. 616, 617-18 (D.Kan.1995). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. Martin v. MAPCO Ammonia Pipeline, Inc., 866 F.Supp. 1304, 1308 (D.Kan.1994); Marx v. Schnuck Mkts., Inc., 869 F.Supp. 895, 897 (D.Kan.1994). See also Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990)(motion to reconsider appropriate when court has obviously misapprehended party’s position, facts, or applicable law, or when party introduces new evidence that could not have been obtained through exercise of due diligence). A motion to reconsider is not a second chance for the losing party to make his strongest case or to dress up arguments that previously failed. Voelkel v. General Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir.1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, 506 U.S. 828," }, { "docid": "16542849", "title": "", "text": "MEMORANDUM AND ORDER EARL E. O’CONNOR, Senior District Judge. Pending before the court is plaintiffs Motion for Reconsideration of Court’s Memorandum and Order dated January 21, 1997 (Doc. # 238). After the filing of this motion, the court issued a show cause order requesting that defendant show cause why plaintiffs motion should not be granted. Defendant filed its response, and the court is now ready to rule. For the reasons discussed below, plaintiffs motion for reconsideration is granted, and the plaintiff is ordered to pay only those costs associated with the Tenth Circuit appeal. I. Standards for a Motion for Reconsideration. The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988) (district court’s decision on motion for reconsideration is reviewed under abuse of discretion standard). It is well established that a motion for reconsideration is the opportunity for the court to correct manifest errors of law or fact and to review newly discovered evidence or to review a prior decision when there has been a change in the law. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party’s position on the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983). II. Discussion. The court, in its January 21, 1997, Memorandum and Order regarding the renewal of the bill of costs, relied on defendant’s representation that failure to provide notice of bankruptcy proceedings to the United States Attorney’s Office rendered the bill of costs claim non-dischargeable. Denmon v. Runyon, 204 B.R. 573, 574 (D.Kan.1997). After determining that the motion for bill of costs involved here was a pre-petition claim subject to discharge, the court addressed whether the United States Attorney’s" }, { "docid": "16542850", "title": "", "text": "or to review a prior decision when there has been a change in the law. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party’s position on the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983). II. Discussion. The court, in its January 21, 1997, Memorandum and Order regarding the renewal of the bill of costs, relied on defendant’s representation that failure to provide notice of bankruptcy proceedings to the United States Attorney’s Office rendered the bill of costs claim non-dischargeable. Denmon v. Runyon, 204 B.R. 573, 574 (D.Kan.1997). After determining that the motion for bill of costs involved here was a pre-petition claim subject to discharge, the court addressed whether the United States Attorney’s Office had received actual or constructive notice of the bankruptcy. We concluded that the United States Attorney’s Office had not received notice and, therefore, debts owed by the plaintiff were not discharged by the bankruptcy. Id. at 574-75. The court ordered that the plaintiff pay the bill of costs. Id. at 575. In plaintiffs motion for reconsideration, plaintiff contends the court was led astray by defendant’s argument that the debt was to the United States Attorney’s Office, not the actual creditor, the United States Postal Service. Plaintiff asserts the proper inquiry is whether the plaintiff properly notified the actual creditor, the defendant United States Postal Service. Plaintiff argues that he did everything required of him to put the defendant on notice of his bankruptcy. He listed the names and addresses of both the United States Postal Service and the local United States Attorney’s Office as creditors in his filing with the bankruptcy court. “In order for a debt to be duly listed, the debtor must state the name and address of the creditor.” In re" }, { "docid": "1133716", "title": "", "text": "the original hearing, the evidence seemed to indicate that debtor had no funds with which to pay and/or that if it had funds that they were encumbered. On the other hand, a critical portion of the argument presented in support of the motion to reconsider merely repeats a critical portion of the argument presented in support of the original motion. Nearly two pages are identical and merely restate word for word a portion of the previous argument. In this regard, the argument now presented appears to be no different from the previous one. -II- ANALYSIS The law pertaining to motions to reconsider is settled and clear. Not every motion to reconsider is automatically entitled to reconsideration. Certain conditions must first be satisfied. The purpose of a motion to reconsider is to correct manifest errors of fact or law or to present newly discovered evidence. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d. Cir.1985). A motion to reconsider is appropriate where the court has misapprehended either a party’s position or the facts or the law, or where the court has decided issues other than those presented for determination by the parties. Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983), aff'd 770 F.2d 98 (7th Cir.1985). A motion to reconsider may not be used to present a new legal theory for the first time or to raise legal arguments which could have been raised in connection with the original motion. Matter of Sisson, 668 F.Supp. 1196, 1197 (N.D.Ill.1983) (citing Publishers Resource v. Walker-Davis Publications, 762 F.2d 557, 561 (7th Cir.1985)). Also, a motion to reconsider may not be used to rehash the same arguments presented the first time or simply to express the opinion that the court was wrong. MGIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir.1986). The standard for granting a motion to reconsider is strict in order to preclude repetitive arguments that have already been fully considered by the court. Park South Tenants Corp. v. 200 Central Park South Associates, 754 F.Supp. 352, 354 (S.D.N.Y.1991). The motion to reconsider now before the" }, { "docid": "8889109", "title": "", "text": "law, or the court has mistakenly decided issues outside of those the parties presented for determination. See Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983), affd, 770 F.2d 98 (7th Cir.1985). A party’s failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider. Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990), affd, 948 F.2d 1529 (10th Cir.1991). The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). B. Analysis. The factual background of this matter is set forth in the court’s October 22 Order and is incorporated by reference. Sithon Maritime Company (“Sithon”) alleges in count IX of its complaint that Mercury Marine (“Mercury”) breached its contract with Sithon to repair and correct the mechanical problems with the propulsion systems in the Summer of 1995. The court previously granted Mer cury’s motion for summary judgment on this claim. See Oct. 22 Order at 12-14. Sithon now moves for reconsideration based on the same evidence and arguments it previously advanced to the court in its opposition papers to Mercury’s motion for summary judgment. Sithon bears the burden of proof to show the execution and existence of a contract for repairs with Mercury. See Van Brant v. Jackson, 212 Kan. 621, 623, 512 P.2d 517, 520 (1973). The Kansas Supreme Court, has held repeatedly that “[i]n order to form a binding contract, there must be a meeting of the minds on all essential terms.” Albers v. Nelson, 248 Kan. 575, 580, 809 P.2d 1194, 1198 (1991); see Sidwell Oil & Gas Co., Inc. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107, 1110 (1981). “To constitute a meeting of the minds there must be a fair understanding between the parties which normally accompanies mutual consent and the evidence must show with reasonable definiteness that the minds of the" }, { "docid": "10574531", "title": "", "text": "its decision to impose Rule 11 sanctions in the form of attorneys’ fees, and, alternatively, to reconsider the amount of attorneys’ fees awarded. In their opposition papers, the defendants request further sanctions against the plaintiff in an amount equal to the reasonable legal fees and costs incurred in defending this motion for reconsideration. II. DISCUSSION A. Motion for Reconsideration Plaintiff moves for reconsideration pursuant to Fed.R.Civ.P. 60(b). It is well established that “[i]t is within the court’s broad discretion to grant relief under Rule 60(b).” United States v. $16,162 In U.S. Currency, 1994 WL 263419, at *1, 1994 U.S.Dist. LEXIS 7848, at *2 (S.D.N.Y. June 10, 1994); see also Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir.1990); O’Grady v. Secretary of the U.S. Dep’t. of Health and Human Servs., 661 F.Supp. 1030, 1034 (E.D.N.Y.1987). A court is justified in exercising this discretion if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice. Larsen v. Ortega, 816 F.Supp. 97, 114 (D.Conn.1992); Bass v. Prudential Ins. Co., 1991 WL 183561, at *1, 1991 U.S.Dist. LEXIS 12897 at *2 (D.Kan. August 19,1991) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986)). It appears that plaintiff’s instant motion for reconsideration relies on the third prong of this test in that the motion asserts the need to correct an error of law in awarding attorneys’ fees or to prevent manifest injustice in determining the amount of such sanctions. However, in exercising this discretion, the court must “balance two important interests: the interest in deciding eases on their merits and concern for the finality of judgments ... With regard to the latter, ‘courts should not encourage the reopening of final judgments or casually permit the relitigation of litigated issues out of a friendliness to claims of unfortunate failures to put in one’s best case.’” $16,162 In U.S. Currency, 1994 WL 263419, at *2, 1994" }, { "docid": "13719721", "title": "", "text": "without deciding that plaintiff has made out a prima facie case, we proceed directly to the third prong of the analysis— pretext. Defendant has articulated legitimate, nonretaliatory reasons for each of its employment decisions and actions toward plaintiff. Plaintiff has wholly failed to come forward with evidence to create a factual question about whether those reasons are a mere pretext for retaliation. In short, there is insufficient evidence from which a reasonable jury could find that defendant retaliated against plaintiff for asserting his ADA rights. Accordingly, defendant is entitled to judgment as a matter of law on plaintiffs claim of retaliation. IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. # 49) is granted. IT IS FURTHER ORDERED that plaintiffs motion for partial summary judgment (Doc. # 44) is denied as moot. MEMORANDUM AND ORDER ON RECONSIDERATION This matter is before the court on plaintiffs motion for reconsideration of our Memorandum and Order of May 13, 1996, granting defendant’s motion for summary judgment (Doc. # 88). For the reasons set forth below, plaintiffs motion will be denied. The decision of whether to grant or deny a motion for reconsideration is committed to the court’s discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). A motion for reconsideration is the opportunity for the court to: 1) correct manifest errors of law or fact; 2) review newly discovered evidence; or 3) review a prior decision in light of a recent change in the law. Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981); see also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct 2895, 90 L.Ed.2d 982 (1986). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party’s position or the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983). A party’s failure to present its strongest case in" }, { "docid": "13719723", "title": "", "text": "the first instance does not entitle it to a second chance in the form of a motion to reconsider. Renfro v. City of Emporia, Kan., 732 F.Supp. 1116, 1117 (D.Kan.1990). Under the “law of the case” doctrine, once an issue is decided by the court, it should not be reconsidered unless it is clearly erroneous or resulted in the imposition of some manifest injustice. Id. This doctrine is based on public policy favoring an end to litigation and encouraging finality in dispute resolution by preventing continued relitigation of issues once decided. See Major v. Benton, 647 F.2d at 112; Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 750 (5th Cir.1985). In his motion for reconsideration, plaintiff sets forth numerous alleged controverted facts and urges that the court failed to properly analyze defendant’s motion for summary judgment because it failed to consider the facts in the light most favorable to plaintiff. Plaintiff misconstrues our opinion — all properly supported factual allegations have been considered in the light most favorable to plaintiff. Where plaintiff failed to present an evidentiary basis for his version of the facts, properly supported uncontroverted facts as stated by defendant were considered, pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56.1. Modem summary judgment jurisprudence requires precisely the analysis employed by the court. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir.1995). Plaintiff complains that the court permitted the defendant to redefine the essential functions of the meter reader position by failing to look to the essential function form. The court fully considered the essential function form, along with all other relevant evidence, in determining that plaintiff had failed to present evidence from which a jury could find that he was qualified to perform the meter reader job at the time of his transfer to the relief operator position as an accommodation for his walking restriction. Plaintiff" } ]

[ { "docid": "13774943", "title": "", "text": "this section without elaboration. No definition of the operative term “fully administered” appears anywhere in the Bankruptcy Code or Rules. See, In re Korvettes, Inc., 42 B.R. 217, 220-21 (Bankr.S.D.N.Y.); In re Silver Mill (Frozen Foods, Inc.), 23 B.R. 179, 181 (Bankr. W.D.Mich.1982). In “asset” cases (that is, cases where non-exempt assets are available to satisfy some claims), Bankruptcy Rule 3022 indicates that entry of a “final decree” is a prerequisite to closing. In “No Asset” cases (where non-exempt assets do not exist), the court’s practice in this district is to close cases upon the filing of a “No Asset” report by the Chapter 7 trustee. Because the closing of a case is a ministerial act by the bankruptcy clerk’s office, the creditors and debtor are not notified. Speed in closing a “No Asset” case is important to the Chapter 7 trustees because their compensation is administratively contingent upon closing. The United States Trustee’s Office and the Bankruptcy Court are also concerned about closing cases due to their roles in the administration of the bankruptcy system. Although essentially ministerial, the closing of a case may trigger abandonment to the debtor of scheduled property of the estate that is unadministered. Section 554 provides that: “(c) Unless the court orders otherwise, any property scheduled under Section 521(1) of this title not otherwise adminis tered at the time of the closing of a case is abandoned to the debtor and administered for purposes of Section 350 of this title. “(d) Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate.” The savings clause of Subsection (d) has been interpreted to prevent automatic abandonment only of unscheduled and unknown property. See, In re Enriquez, 22 B.R. 934 (Bankr.D.Neb.1982); 4 Collier on Bankruptcy ¶ 554.03, p. 554-11 (15th ed. 1986). In this case, the asset is a scheduled contingent claim to which Section 554(c), not Section 554(d), applies. If the case is closed now, the claim will be deemed automatically abandoned and thus “administered” within the" } ]

[ { "docid": "17942979", "title": "", "text": "can be tried to judgment by a bankruptcy judge after a bankruptcy proceeding has been closed. In the bankruptcy judge’s “Rule to Show Cause why case should not be dismissed” issued in the underlying main proceeding on July 19, 1989, he recited that no plan of reorganization or disclosure statement had been filed by any party, that the debtor was unable, or had abandoned his intent to effectuate a plan and that the case was due to be dismissed unless some party in interest should show cause to the contrary. On August 9, 1989 the court entered its order reciting the foregoing, stating that no objections had been filed, and that the case “is dismissed and closed.” The clerk was directed to notify all parties, which was done according to the clerk’s certificate. A bankruptcy closing report is filed. There are no further entries on the docket sheet and the file is marked closed. The adversary proceeding was carried as a separate file and it became dormant in 1987 except for two documents filed in 1988. Then interestingly on August 25, 1989, the bankruptcy court entered a Rule to Show Cause in that proceeding, reciting that it appeared that the plaintiff had abandoned the case, and that it was due to be dismissed unless good cause be shown. The only parties served with this Rule to Show Cause were plaintiff’s attorney, defendant’s attorneys, and the bankrupt’s administrator. Morris’ attorney filed an objection to the dismissal and a hearing was conducted September 12, 1989, with Morris and the Housing Authority being represented. The following colloquy ensued during the hearing: Mr. Cater: (For Housing Authority) I might point out to the Court that the case that this arises out of has been dismissed. There is no longer a case— THE COURT; What does that have to do with what we’re talking about? Mr. Cater: Judge, except for the fact that this originated in Bankruptcy Court, this would be a case tried in state court. There is an action pending in state court which has been stayed so long as Mr. Morris was" }, { "docid": "18530955", "title": "", "text": "theories for revoking a discharge. 11 U.S.C. § 727(e)(2).” Id. at 911. It concluded that “[rjeopening the case does not undo any of the statutory consequences of closing.” Id. at 913. However, this litigation does not present the typical scenario addressed under the § 350(b) authorities. First, there was no request made “under” § 350(b) and that authority was not cited in the Court’s Order. See Doc. Nos. 19, 21. Second, the closing order here was entered but then almost immediately set aside on the basis that the report of no distribution (which triggers an order entered by the clerk under this Court’s delegation of authority by General Order to the clerk to enter certain uncontested orders) was erroneously filed. In practical effect, Trustee’s request to withdraw that report and for entry of an order such as Doc. No. 21 was predicated on the principle that the Court could correct an error. Recently the Bankruptcy Appellate Panel had occasion to consider the bankruptcy court’s equitable power to revisit and reconsider its orders. See Woods & Erickson, LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721, 729-30 (9th Cir. BAP 2008). The Panel notes not only that such equitable power exists but that the Ninth Circuit “has observed that the court’s discretion to revisit past orders is broad in the absence of ‘vested’ rights.” Id. (citations omitted). Because exercise of such discretion is an equitable proposition, the existence of “intervening equities, potential hardship to other persons, and prejudice to a party” should be considered. Id. (citations omitted). In the present situation, the relief from the closing order was sought within a clearly reasonable time, only some six days. There is nothing to indicate any intervening equities, hardship or prejudice. Had not these erroneous events, covering a total of two weeks occurred, Debtor would have faced the possibility of a § 727(d)(2) action for the duration of the case, until its intentional closing occurred. The error in closing was patent, and quickly addressed and remedied, and there were no “vested” rights as a result of the error. The intended effect, and" }, { "docid": "17236110", "title": "", "text": "was clearly no inadvertence or neglect in the Trustee's actions to close this case,” and that it is \"obvious” that the \"Trustee was fully aware of the consequences of his actions in filing an application to close this Chapter 11 case.” Appellants’ Br. at 33, 36. The record indicates that neither the trustee nor the Woods nor even the court were so enlightened. Given the fact that the trustee attempted a post-closing sale to Packard, which the bankruptcy court approved (with the Woods present and silent as to the effect of the case closing, see Appellee’s App. at 3), their present arguments on the issue of inadvertence do not appear to be made in good faith and are not well taken. . Thus this was not a case where inadvertence resulted from lack of diligence. See 12 James Wm. Moore et al., Moore’s Federal Practice ¶ 60.41[l][c][ii] (3d ed.1998). . Apparently the court, the trustee, and the debtors initially treated the case closing as of little consequence; and the bankruptcy court reasoned, in its order reopening the case, that ”[c]losing a case is basically a matter of administration allowing the clerk to close the files and ship them off to the archives.” Ap-pellee’s App. at 9. One circuit court has noted that there is some confusion at the bankruptcy court regarding the closing of cases. We are told that the clerk has been delegated the authority to close cases, but that the clerk only does so when it is deemed that a reasonable time has passed without case activity.... It is also suggested that the closing of a case is ministerial at times.... On the other hand, in this matter it is quite clear that the bankruptcy judges did not consider the case to be closed at all, and the parties did not consistently behave as if it were. Schwaber v. Reed (In re Reed), 940 F.2d 1317, 1321-22 n. 4 (9th Cir.1991). . Because we uphold the court's approval of Kenan’s March 7, 1995, motion, the Woods’ argument that they are entitled to properties not described in previous motions" }, { "docid": "5531270", "title": "", "text": "closing has been called a “nebulous” concept. In Re Korvettes, Inc., 67 B.R. 730, 732 (S.D.N.Y.1986). We shall try to clarify the issue at least in part. Section 350(a) of the bankruptcy code states that “After an estate is fully administered and the court has discharged the trustee, the court shall close the case.” 11 U.S.C. § 350(a). A bankruptcy rule uses nearly the same language in restating this proposition. Fed.R.Bankruptcy P. 5009. The language of Section 350(a) is conjunctive. The estate must be fully administered and the trustee must be discharged. This language indicates that without formally discharging the trustee, the bankrupt estate may not be legally closed. The statute continues, stating that the court shall close the case at the time of formal discharge. The statute does not, however, indicate whether the court may close the case at an earlier time. No language forecloses this opportunity, but to determine if this is permissible, we shall consider the policies affecting the closing of a bankruptcy estate and the trustee’s duties. A trustee is charged with the duty of closing the estate as expeditiously as may be compatible with the best interests of the parties. 11 U.S.C. § 704(1). A trustee must “fully administer” creditors’ claims against the bankrupt estate. The trustee controls the assets of the estate, which will be applied to satisfy these claims to the extent assets exist. The remaining property of the debtor which is of no value or is exempt from administration is “abandoned”. 11 U.S.C. § 554. “Full administration” has not been conclusively defined. A Chapter 7 estate may be “fully administered” before some ministerial tasks are completed. In the judicial context, “ministerial” refers to purely mechanical tasks that presumably do not affect issues on appeal or result in new appeals. In re Excello Press, Inc., 967 F.2d 1109 (7th Cir.1992) (cases remanded to a bankruptcy judge for computational purposes only); In re Fox, 762 F.2d 54, 55 (7th Cir.1985). These same principles apply to ministerial tasks required of bankruptcy trustees. In In re J.W. Knapp Co., 930 F.2d 386, 388 (4th Cir.1991), the" }, { "docid": "16759405", "title": "", "text": "claim a $45,000 exemption on his asset schedule, but that he claimed an exemption of his entire one-half joint tenancy interest as his exemption. We have reviewed Debtor’s bankruptcy petition, \"Schedule B-4 — Property claimed as exempt,” and find this assertion to be erroneous. The first item listed is \"Homestead,” and the value claimed exempt is $45,000. Although Debtor is correct in stating that California defines “Homestead” as the principal dwelling, California does not define \"homestead exemption” in the same way. Had Debtor claimed exemption of the whole property because of the effect of calculations provided by California law, as set out in Section C of this opinion, we would be dealing with a different case. Of course, others reviewing the schedule would have had the same information, and could have acted to protect themselves. .The briefing and argument in this case suggest that there is some confusion at the bankruptcy court regarding the closing of cases. We are told that the clerk has been delegated the authority to close cases, but that the clerk only does so when it is deemed that a reasonable time has passed without case activity. We have not been referred to and have not been able to find any formal delegation document. It is also suggested that the closing of a case is ministerial at times. In a 1987 case, one bankruptcy judge from the Central District noted that a final decree was necessary for closing cases but that the closing itself was an essentially ministerial act delegated to the clerk's office in no asset cases. See In re Hart, 76 B.R. 774, 776 (Bankr. C.D.Cal.1987). On the other hand, in this mat ter it is quite clear that the bankruptcy judges did not consider the case to be closed at all, and the parties did not consistently behave as if it were. We mention the issue because, as this case shows, very important rights can turn on whether a case is closed. Thus, it would be most helpful to all concerned if the intended policy and procedure of the bankruptcy court were clarified." }, { "docid": "15135722", "title": "", "text": "may be exposed to the commencement of suits to avoid preferences even after entry of an order of confirmation until the case is closed, whenever that amorphous moment should occur. Such an open-ended interpretation of timeliness is indeed unacceptable to this Court in that its adoption would foment great uncertainty and confusion. This is because the point at which a case is officially “closed” is unclear under the Bankruptcy Code and the Rules of Bankruptcy Procedure. Code Section 350(a) provides: “After an estate is fully administered and the court has discharged the trustee, the court shall close the case. The phrase “fully administered” is nowhere explained and the Rules lend no insight into a reasonably precise definition of the exact final moment when a case is officially closed. For example, Bankruptcy Rule 3022 may be read to indicate that a “final decree” must be entered in order for a case to be “closed”. However, Bankruptcy Rule 5009 follows the wording of Code Section 350(a) almost exactly in setting down the amorphous point when the case is “fully administered” as the trigger for the closing of the case. Thus, the exact point of case closing is subject to interpretation and administrative activity. See generally In re Silver Mill, 23 B.R. at 181 (declaring that “the Code is not very clear on when a Chapter 11 case is closed”). Moreover, under Section 350 and Rule 5009, the final act of administration could very well be- a purely ministerial act of which the debtor and other parties would receive no notice. Thus, to have the statute of limitations for bringing preference actions turn on this nebulous concept of case “closing” would clearly be unworkable. In addition, such open-ended interpretation also has .great potential for working inequities in obviating all repose that creditors might enjoy were a more definite time period for the bringing of preference actions set down. There must be some finality to the debt- or in possession’s ability to bring preference actions in order to afford creditors the repose that Congress must have intended in enacting Code Section 546(a). The Supreme" }, { "docid": "18766684", "title": "", "text": "timeliness is indeed unacceptable to this Court in that its adoption would foment great uncertainty and confusion. This is because the point at which a case is officially “closed” is unclear under the Bankruptcy Code and the Rules of Bankruptcy Procedure.... Moreover, under Section 350 and Rule 5009, the final act of administration could very well be a purely ministerial act of which the debtor and other parties would receive no notice. Thus, to have the statute of limitations for bringing preference actions turn on this nebulous concept of case “closing” would clearly be unworkable. In addition, such open-ended interpretation also has great potential for working inequities in obviating all repose that creditors might enjoy were a more definite time period for the bringing of preference actions set down. Id. at 220-21. Finding the statute ambiguous, and “in order to afford creditors the repose that Congress must have intended in enacting Code section 546(a),” id. at 221, the Bankruptcy Judge “fashion[ed] ... a rule of reason” to apply as a time bar in cases where the debtor remains in possession. Ibid. After holding the corresponding state limitations period inapplicable, the Judge determined that the longer of confirmation or two years from the re-organization filing date should be the appropriate period for the bringing of preference actions for statute of limitations purposes. Stated differently, a debtor in possession should be able to bring preference action until a re-organization case is confirmed, no matter how long that process naturally takes. If, however, a case is confirmed in less than two years, the debtor may bring these actions until the two year period has elapsed, so long as it has provided in the confirmation documents that preference action may be brought post-confirmation. Id. at 222-23. Since Korvettes failed to bring the instant action before confirmation or within two years from its filing date, the Bankruptcy Judge held the action time-barred. Id. at 224. B. Discussion In my view, the Bankruptcy Judge properly rejected Sanyo’s contention that subsection 546(a)(1) bars this action. Indeed, every other authority of which this Court is aware that had" }, { "docid": "16759404", "title": "", "text": "state law. It is not frivolous. We decline to award sanctions against appellants. CONCLUSION Debtor sought to discharge his debts in bankruptcy. He, however, had a very valuable asset which he sought to keep. Acceptance of his argument that he can do so would require us to take a rather lackadaisical view of bankruptcy law and procedures. We decline. The simple fact is that Debtor’s interest in his home remained in the bankruptcy estate until he and his wife contrived to sell it, and thus convert it into cash. Now they must account for the Debtor’s interest in that cash. In reaching our conclusion we need not describe the Debtor’s behavior as picaresque or worse. We need only point out that the result is both fair and compelled by the bankruptcy law. AFFIRMED. . David Seror has since been appointed as successor trustee, and has become the successor to Schwaber’s interest in this appeal. . Under the 1990 amendments to section 704.-730, Debtor’s exemption would be $75,000. . Debtor argues that he did not merely claim a $45,000 exemption on his asset schedule, but that he claimed an exemption of his entire one-half joint tenancy interest as his exemption. We have reviewed Debtor’s bankruptcy petition, \"Schedule B-4 — Property claimed as exempt,” and find this assertion to be erroneous. The first item listed is \"Homestead,” and the value claimed exempt is $45,000. Although Debtor is correct in stating that California defines “Homestead” as the principal dwelling, California does not define \"homestead exemption” in the same way. Had Debtor claimed exemption of the whole property because of the effect of calculations provided by California law, as set out in Section C of this opinion, we would be dealing with a different case. Of course, others reviewing the schedule would have had the same information, and could have acted to protect themselves. .The briefing and argument in this case suggest that there is some confusion at the bankruptcy court regarding the closing of cases. We are told that the clerk has been delegated the authority to close cases, but that the clerk" }, { "docid": "16759407", "title": "", "text": ". Anent the immediately preceding footnote, Hunter said that, at least in the Southern District of Ohio, the filing of a no asset report does not close a bankruptcy case. Id. at 118. . The bankruptcy court found that Debtor’s interest was in fact joint tenancy rather than community property, and this finding is not clearly erroneous. . If Schneider held that a trustee has no interest in the property unless the Schoenfeld formula is met, we would not accept that reasoning. Scho-enfeld is a case about creditors' powers under California law, not about a trustee’s powers under bankruptcy law. . While the bankruptcy court did not specifically say that the requirements of section 363(h) were fulfilled, it appears likely that they were. Since this was a residence, partition in kind was obviously not possible. Section 363(h)(1). The estate’s interest would be much less if both halves could not be sold — it could be zero. Section 363(h)(2). The benefit to the estate far exceeded the detriment to the other co-owner, for the other would get full value for her interest, which she wanted to sell anyway, and the estate would get some value itself rather than nothing. Section 363(h)(3). Certainly, the effect of a sale on the other co-tenant can be a proper consideration and might in a proper case result in a denial of the right to sell both interests. See In re Coombs, 86 B.R. 314 (Bankr.D.Mass.1988). It is also clear that this was not property used for production of electric energy or natural gas. Section 363(h)(4). Of course, as it turned out, no forced sale of this estate asset was necessary. The Debtor and his wife made the sale without coercion, and even against admonishments not to do so. Commencement of a section 363(h) hearing would most likely be an idle act at this time. . In this case, for example, at the time of filing of the bankruptcy the value of the residence was at least $600,000 and the whole encumbrance was $380,000. Therefore, even if an ordinary creditor could not force a sale, the" }, { "docid": "17276338", "title": "", "text": "authority to the local courts would be a nullity.” In the Matter of C.S. Crawford & Co., 423 F.2d 1322, 1324 (9th Cir.1970). Where the rules are silent, the test of validity of a local rule is whether it carries forward the purposes of the Bankruptcy Act and keeps faith with the policies embodied therein. Id. at 1324-25. This the label matrix rule does, by facilitating the process of notifying creditors of the bankruptcy proceeding. Moreover, there is nothing magical about the forms mentioned in rule 108. The Rules of Bankruptcy Procedure specifically give considerable latitude to courts to allow variations from the official forms where necessary or appropriate under the circumstances. See Rule of Bankruptcy Procedure 909; see also 2A Collier on Bankruptcy ¶ 30.02 (14th ed. 1974). What the bankruptcy court can allow, it can require by local rule. See Colgrove v. Battin, 413 U.S. 149, 164, 93 S.Ct. 2448, 2457, 37 L.Ed.2d 522 (fact that Fed.R.Civ.P. 48 allowed parties to stipulate to juries of less than twelve in civil cases did not prevent court from requiring by local rule that civil juries be a certain size below twelve). Accordingly, we do not find the label matrix rule to be inconsistent with rule 108. Nor do we find the label matrix rule to be inconsistent with rule 506. That rule provides: The referee may delegate any ministerial function to an assistant employed in his office or, with the approval of the chief judge of the district court, to any person employed in the office of the clerk of the district court. Adams argues that it is a ministerial function of the clerk of the district court to notify creditors of all events transpiring within the bankruptcy proceeding and that the label matrix rule, as an attempt to delegate that ministerial function, must fail. Adams makes the incredible assertion that it is “the responsibility of the Bankruptcy Clerk to determine that the means which are being used to notify Creditors contains the correct address.” We find this argument to be nothing short of specious. The debtor has always had" }, { "docid": "9971934", "title": "", "text": "any potential recovery by Weeks would be from estate funds. The Court notes that the defense of the Weeks’ claim was “transferred to Federal Mortgage.” A portion of paragraph seven of course refers to indemnification of the defendants of this adversary proceeding, and discusses potential findings of liability for conduct or acts “exceeding the powers and duties of the Co-Trustees under Title 11 of the U.S. Code.” The contradiction is of course that upon the closing of the bankruptcy case, there no longer existed a debt- or’s estate, nor would bankruptcy trustees exist. One effect of confirmation of the plan was to vest property as specified in the plan. 11 U.S.C. Section 1141(b). However, the order was apparently recognizing the practical effect of the confirmation— that all assets were transferred to Federal Mortgage before the disposition of Constance H. Weeks’ potential claim against the assets, and the apparent effect of the order is that Federal Mortgage recognized its responsibility to preserve some former estate assets for satisfaction of the Constance H. Weeks’ claim, if allowed. Even though the Order of Final Decree says that the case is closed, the case file has not been closed by the clerk’s office and cannot be until the pending adversary proceedings are terminated. This Court does not have before it simply an objection to a claim. See, Bankruptcy Rule 3007. It has a complaint, grounded in negligence, which asserts a post-petition claim against not only the estate, but also against individual defendants. Therefore, the Court may not dispose of the adversary proceeding without determining whether all or part of the proceeding is core under 28 U.S.C. Section 157. This Court has construed the order of Judge Horton remanding this cause to the Bankruptcy Court to be a directive to determine, in part, if this Court has both jurisdiction and procedural authority to hear the adversary proceeding. At this Court’s direction, the record of the state court proceeding has been transferred to this Court. As a part of the jurisdictional inquiry, status conferences and pre-trial conferences have been conducted by this Court. The plaintiff Weeks" }, { "docid": "17942978", "title": "", "text": "pursuant to Chapter Ten of the old Act and the suit against the Housing Authority was not within the jurisdiction of the Bankruptcy Court. It would have been tried either in state court or the U.S. District Court. It is unnecessary to go into the history of the 1978 and 1984 Acts. Suffice it to say that the lawsuit between Morris and the Housing Authority was a “related proceeding” under the new Act as discussed in the literature. District courts have original jurisdiction over related proceedings but they are normally referred to the bankruptcy courts for trial by a standing order in the local district court rules. In this case the defendant moved to withdraw the proceeding which the district court denied. That court thought it was a core proceeding because it had started out as a turnover proceeding. I reach the opposite conclusion, but it makes no difference. It is my view that neither an adversary proceeding covered by Part VII of the Bankruptcy Rules nor a contested matter as described by Rule 9014 can be tried to judgment by a bankruptcy judge after a bankruptcy proceeding has been closed. In the bankruptcy judge’s “Rule to Show Cause why case should not be dismissed” issued in the underlying main proceeding on July 19, 1989, he recited that no plan of reorganization or disclosure statement had been filed by any party, that the debtor was unable, or had abandoned his intent to effectuate a plan and that the case was due to be dismissed unless some party in interest should show cause to the contrary. On August 9, 1989 the court entered its order reciting the foregoing, stating that no objections had been filed, and that the case “is dismissed and closed.” The clerk was directed to notify all parties, which was done according to the clerk’s certificate. A bankruptcy closing report is filed. There are no further entries on the docket sheet and the file is marked closed. The adversary proceeding was carried as a separate file and it became dormant in 1987 except for two documents filed in" }, { "docid": "12564246", "title": "", "text": "is not an aberration, but represents a Congressional policy choice. Congress could have excepted from the debtor’s discharge debts that were omitted, intentionally or otherwise, from the schedules. Congress might simply have continued pre-Code law.Instead, the legislative history shows that Congress expressly overruled that prior law and created the narrow exception found in § 523(a)(3)....”). . The equitable rule applied in Stark to a no-asset, no-bar-date case was originally developed for use in a very different kind of bankruptcy. The incautious use of such a standard outside the context in which it originated is at the heart of the problems we confront here. The typical Chapter 7 bankruptcy is the no-asset, no-bar-date case. In some instances, however, the debtor has no assets to distribute to creditors, but a bar date is set by the clerk's office. See In re Corgiat, 123 B.R. 388, 390-91 (Bankr.E.D.Cal.1991) (recognizing the importance of this distinction); In re Walendy, 118 B.R. 774, 775-76 (Bankr.C.D.Cal.1990) (same). In such a case, section 523(a)(3)(A) operates with respect to an omitted creditor as follows: a deadline for filing claims is established; the omitted creditor-receives no notice of the debtor's bankruptcy; the deadline for filing claims passes; the debtor's case is closed, with no assets having been distributed; the omitted creditor, technically, has been deprived of the right protected by section 523(a)(3)(A), i.e., the right to file a timely proof of claim; thus, by operation of the plain language of the Bankruptcy Code, the omitted debt would appear to be excepted from discharge. Many courts, however, have felt that this is an inequitable result. After all, since no assets were distributed, the omitted creditor has suffered no real prejudice because of its inability to file a timely proof of claim. Such a creditor is in exactly the same situation as the creditors that did file. Allowing this creditor to retain its pre-bankruptcy claim against the debtor seems to amount to an undeserved windfall, for the creditor is left in a better position than all other creditors merely by virtue of having been left off the debtor’s schedules. These courts have" }, { "docid": "5531274", "title": "", "text": "to file a final report prior to the closing. We find no docket entry that a final report was filed, nor do we find the report itself in the record. Instead, we find the successor trustee’s accounting of the former trustee’s administration, as well as an application to abandon certain property, an application for compensation and reimbursement and the request to close. The aggregate of these documents does not provide the information required pursuant to local bankruptcy rules to comprise the final report. Nor does the required information appear in the form stipulated by Rule B-2023. Because no final report was filed, therefore, the trustee’s duties had not been fully carried out. In conjunction with the fact that the trustee had not been discharged and thereby relieved of any unfulfilled duties, it appears that the powers of the trustee had not been fully exercised. Thus, the district court’s January 17 order closing the estate was entered somewhat prematurely — before all requisite duties had been performed. The point is, however, that, whether or not the order was entered prematurely, it was entered and it did purport to be final. In the absence of more material errors than appear here, the order of a district court that is final in form and is, to all appearance, proper, will be taken at face value and will be regarded as final for jurisdictional purposes. In this case, not only did the court intend the order to be final, and label it as such, but the parties regarded it as final — at least until one of them developed an interest in having a later date to appeal. The hearing of January 4 and 5 resolved all the disputes arising from the coré proceedings and the parties agreed to close the bankruptcy. As a result, the order of January 17 closing the estate was issued. At the time that order was issued, the only duty of the trustee that remained was the filing of some ministerial paperwork. Because Hopper filed a “final” report, there remained little for Shook to do. Compiling the documents necessary" }, { "docid": "18575850", "title": "", "text": "the bankrupt or other person to administer assets, to accord relief to the bankrupt, or for other good cause. The application shall be filed with the clerk of the district court having custody of the papers in the case. The case shall be referred forthwith for action on the application and for further proceedings therein. We note that \"in connection with the modification or vacation of orders or decrees, Federal Civil Rule 60(b) is inapplicable in bankruptcy proceedings, as inconsistent therewith.” 1 Collier on Bankruptcy ¶2.12[2.1] (14th ed. 1976). (footnote omitted). Appellants cite In re Barlean, 279 F.Supp. 260 (D.Mont.1968), for the proposition that \"cause shown” refers to causes which, if known to the adjudicating authority, would have changed the decision or order. They say that no fact exists in the record to show that if this matter had been considered by the original district judge who handled the case and had since died, a different result would have been reached nor that his failure to require such an additional assessment was mere oversight or omission. The court in In re Barlean stated at p. 261 that \"since the referee reached the correct result at the time he acted, and since no cause is now shown which if shown at the time of the closing of the estate would have altered the result, the motion to re-open is denied.\" In re Barlean is distinguishable from this case. Here the correct result was not reached by the adjudicating authority at the time he acted. . The estate was closed on July 17, 1979. II R. 352. After the estate was closed, the bankruptcy judge was required to prepare and transmit to the Administrative Office of the United States Courts the closing statistical report in this case — Form BK-78, Report of Bankruptcy Judges in Cases Terminated Under Chapter XI. The bankruptcy judge inquired of the accountants for the bankruptcy estate what payments were made from the estate in order to complete Form BK-78. On review of the information given him he discovered that no charges were made or paid to the" }, { "docid": "14809963", "title": "", "text": "THOMAS F. WALDRON, Bankruptcy Judge. This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A), in which the Chapter 7 trustee has filed a motion (Doc. 14) requesting the court to reopen the case and set aside his abandonment. For the reasons set forth herein, the court DENIES the relief requested in the trustee’s Motion. The trustee must have believed the case was closed by an order entered in the case since part of the relief he requested was to have the case reopened. The debtor has paid the required filing fee and received her discharge; however, as a result of the trustee’s Motion, the clerk’s office did not complete the ministerial act of entering an order closing the case. In so far as the trustee’s motion requests a reopening of this case, since an order closing this case has not been entered, his motion is DENIED. In so far as the trustee’s motion attempts to “reopen” his final report, which closed his participation in this case, his motion is also DENIED. The balance of this decision is directed to the issues connected with the trustee’s request to set aside his abandonment. On July 10, 1986, Yolanda Hunter, hereinafter the debtor, filed a Chapter 7 petition and on July 25, 1986 filed her Statement of Affairs and Schedules which listed a 1982 Ford Mustang automobile. On July 31, 1986, a Proof of Claim was filed by Huntington National Bank, hereinafter HNB. This proof of claim contained as attachments a copy of a loan agreement dated June 5,1986 involving the automobile and a copy of the Ohio Certificate of Title noting HNB’s lien dated June 24, 1986. On August 14, 1986, the trustee presided at the Meeting Of Creditors pursuant to 11 U.S.C. § 341 and on August 15, 1986, filed his Notice Of Abandonment Of Burdensome Property and Report Of No Assets (Doc. 8). On September 19, 1986, HNB filed a motion requesting relief from the stay (11 U.S.C. § 362)." }, { "docid": "622907", "title": "", "text": "Appellees, Hampton and Rodolakis, argue that no error was committed by Judge Queenan, that the case terminated in 1993 by virtue of the bankruptcy court order closing it, and that the 1993 order closing the case was ratified in 2006, after hearing, by Judge Rosenthal. The responsibility to review the accuracy and correctness of a trustee’s final report lies with the U.S. Trustee, see 28 U.S.C. § 586, and the bankruptcy court intervenes only when an objection is filed. Fed. R. Bankr.P. 5009. There being no objection in this case, all that was left for the bankruptcy court to do was to ministerially enter its order closing the case, and 'that is what happened. Because the filing of the trustee’s final report by a person other than the appointed trustee was not brought to the attention of the bankruptcy court until thirteen years after the event, we agree that the perfunctory bankruptcy court order closing Koza’s Chapter 7 case on October 29, 1993, was not a fatal mistake, and that the approval of said order by the bankruptcy judge in September 2006, was neither an error of law nor an abuse of discretion. See In re Wade, 991 F.2d 402, 408-09 (7th Cir.1993) (court held the case closed, although the trustee’s final report was deemed “interim” and not “final,” and because no timely appeal was filed, any defects in the final report were deemed waived). Alternatively, Eresian argues that should the Panel conclude that the case indeed was closed, then it should be reopened, on the ground that there are assets which Koza failed to list in his schedules, and which have yet to be administered. Eresian, however, provided the bankruptcy court with no evidence of undisclosed assets, and did not even suggest this as an issue below. In re Crocker, 362 B.R. 49, 53 (1st Cir. BAP 2007); In re Bevis, 242 B.R. 805, 811-12 (Bankr.D.N.H. 1999) (a debtor’s failure to disclose an interest at the time its petition is filed does not translate into the case never finally closing under § 350(a)). Instead, it was not until Eresian" }, { "docid": "16759406", "title": "", "text": "only does so when it is deemed that a reasonable time has passed without case activity. We have not been referred to and have not been able to find any formal delegation document. It is also suggested that the closing of a case is ministerial at times. In a 1987 case, one bankruptcy judge from the Central District noted that a final decree was necessary for closing cases but that the closing itself was an essentially ministerial act delegated to the clerk's office in no asset cases. See In re Hart, 76 B.R. 774, 776 (Bankr. C.D.Cal.1987). On the other hand, in this mat ter it is quite clear that the bankruptcy judges did not consider the case to be closed at all, and the parties did not consistently behave as if it were. We mention the issue because, as this case shows, very important rights can turn on whether a case is closed. Thus, it would be most helpful to all concerned if the intended policy and procedure of the bankruptcy court were clarified. . Anent the immediately preceding footnote, Hunter said that, at least in the Southern District of Ohio, the filing of a no asset report does not close a bankruptcy case. Id. at 118. . The bankruptcy court found that Debtor’s interest was in fact joint tenancy rather than community property, and this finding is not clearly erroneous. . If Schneider held that a trustee has no interest in the property unless the Schoenfeld formula is met, we would not accept that reasoning. Scho-enfeld is a case about creditors' powers under California law, not about a trustee’s powers under bankruptcy law. . While the bankruptcy court did not specifically say that the requirements of section 363(h) were fulfilled, it appears likely that they were. Since this was a residence, partition in kind was obviously not possible. Section 363(h)(1). The estate’s interest would be much less if both halves could not be sold — it could be zero. Section 363(h)(2). The benefit to the estate far exceeded the detriment to the other co-owner, for the other would" }, { "docid": "16759397", "title": "", "text": "abandonment unless the court closes the case. Behrens v. Woodhaven Ass’n, 87 B.R. 971, 973 n. 1 (Bankr.N.D.Ill.1988); In re Dlugopolski, 67 B.R. 122, 124 (Bankr.D.Kan.1986) (no abandonment by operation of law because case had not been closed); 11 U.S.C. § 554 (identifying three ways in which a trustee can abandon property, all of which require court action). In this matter, the bankruptcy court found that the case was never closed by the court before the Reeds sold their home, and that factual finding is not clearly erroneous. See 11 U.S.C. § 554(c). It is also undisputed that there was no notice and hearing before the trustee filed the “No Asset” report. See 11 U.S.C. § 554(a), (b). Thus, there was no court action and no abandonment. The policy statements in In re Hunter, 76 B.R. 117 (Bankr.S.D.Ohio 1987), would not change this result, even if we accepted them. The court in Hunter stated that the courts and the parties should be able to rely on a trustee’s filing of a “No Asset” report without having to wonder whether the trustee will second guess himself. Id. at 119. In the present case, there was no reliance. On the contrary, before the Reeds proceeded to sell their home, the bankruptcy judge stated, “I’m giving [them] warning, that the trustee is intending to administer this property. Your client can’t sell it, okay.” At any rate, it does not ask too much of parties or courts if they must wait until the order closing the estate is actually made. That is no more than the law expressly requires. To the extent that Hunter would ignore the law for the sake of administrative convenience, we decline to follow it. C. Debtor’s Interest in the Residence State law determines the existence and scope of a debtor’s interest in property. Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 136 (1979). That interest is determined upon filing the bankruptcy petition and becomes part of the bankruptcy estate at that time. 11 U.S.C. § 541(a). Under California law, only a Debtor’s one-half" }, { "docid": "17236111", "title": "", "text": "reopening the case, that ”[c]losing a case is basically a matter of administration allowing the clerk to close the files and ship them off to the archives.” Ap-pellee’s App. at 9. One circuit court has noted that there is some confusion at the bankruptcy court regarding the closing of cases. We are told that the clerk has been delegated the authority to close cases, but that the clerk only does so when it is deemed that a reasonable time has passed without case activity.... It is also suggested that the closing of a case is ministerial at times.... On the other hand, in this matter it is quite clear that the bankruptcy judges did not consider the case to be closed at all, and the parties did not consistently behave as if it were. Schwaber v. Reed (In re Reed), 940 F.2d 1317, 1321-22 n. 4 (9th Cir.1991). . Because we uphold the court's approval of Kenan’s March 7, 1995, motion, the Woods’ argument that they are entitled to properties not described in previous motions or notices must fail. That the March 7, 1995, motion included properties not described in previous documents is irrelevant. . Counsel for the Woods admitted at the hearing, \"I was hoping my objection would be sustained; and, therefore, we wouldn’t need to try to purchase [the properties], you would abandon them to us.” Appellants’ App. Vol. I at 115-16." } ]

[ { "docid": "2006183", "title": "", "text": "at the trial and principal attorney in this appeal. II. The Sixth Amendment right to counsel includes not only an indigent’s right to have the government appoint an attorney to represent him, but also the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing. Included also is the right of any defendant to a reasonable opportunity to obtain counsel of his own choosing. Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932); United States v. Pigford, 461 F.2d 648, 649 (4 Cir. 1972). But the court also has the right to control its own docket to require that eases proceed in an orderly and timely fashion, and to that end to deny motions for continuances. As was said in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed. 2d 921 (1964), where the right to counsel was asserted to conflict with the court’s right to proceed with a trial: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality . . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Id., p. 589, 84 S.Ct. p. 849. III. Here, we find no abuse of discretion, even though we conclude that the outermost reach of discretion was exercised. Retained counsel’s assigned reasons for" } ]

[ { "docid": "21574549", "title": "", "text": "upon proof of his financial inability to retain counsel and to pay the costs and expenses of the appeal, to make application to the appellate court for the following relief: for the assignment of counsel to prosecute the appeal; for leave to prosecute the appeal as a poor person and to dispense with printing; and if stenographic minutes were taken, for a direction to the clerk and the stenographer of the trial court that a typewritten transcript of such minutes be furnished without charge to the appellant’s assigned counsel or, if appellant prosecutes the appeal pro se, to appellant. McKinney’s 1989 New York Rules of Court § 671.3(b)(3) (emphasis added). The court found that this section, granting a transcript only where counsel is assigned, while denying it where counsel is retained, does not violate a defendant’s rights to due process or equal protection to the extent that it links a defendant’s ability to retain counsel with his ability to pay the costs and expenses of an appeal by prohibiting retained counsel from receiving minutes paid for by the government. An indigent defendant whose friends and family are willing to hire a lawyer for the defendant at their own expense has no right to a free copy of the trial minutes. Opinion at 3. Judgment was entered dis-( missing the petition. ' Fullan appeals, contending that since, he is indigent, he has the right to a free transcript for purposes of appeal despite the fact that family and friends have raised sufficient funds to retain counsel for him. For the reasons below, we conclude that if Fullan himself had no funds with which to prosecute the appeal and had no control over the funds used to retain counsel for him, the State’s denial of his application for a free transcript violates his rights to due process and equal protection. II. DISCUSSION A. Habeas Jurisdiction of Fullan’s Claim Before we reach the merits of Fullan’s claim that the denial of a free transcript denies him due process or equal protection, we must consider whether his claim came within the scope of the" }, { "docid": "16475044", "title": "", "text": "Public Defender’s Office. Miller refused to apply for legal representation with the Public Defender’s Office because he retained the services of a private attorney willing to handle the appeal pro bono. Pursuant to Maryland Rule l-325(b), the state trial court denied Miller’s request for a trial transcript. The issue presented in this appeal is whether the state trial court’s denial of Miller’s motion for a trial transcript violated his Sixth Amendment right to counsel of choice and his rights guaranteed by the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For the reasons stated below, we conclude Miller’s constitutional rights were not violated in this ease. I Miller was one of two men charged with the kidnapping, robbery and murder of Pamela Basu. Prior to trial, Miller, as an indigent, was offered representation through the Public Defender’s Office, but declined. He was represented at trial by Laurack Bray, an attorney whom he privately engaged. Bray agreed to represent Miller pro bono. Following a jury trial, Miller was convicted of several offenses, including felony murder. He was sentenced to life plus ten years. Miller noted a timely appeal. While his appeal was pending, Miller filed a motion in the state trial court requesting the State of Maryland to pay the cost of preparing his trial transcript. Because Miller had not requested representation through the Public Defender’s Office and because Bray refused to seek appointment by the Public Defender’s Office, the state trial court denied the motion pursuant to Maryland Rule 1 — 325(b). Miller timely appealed the denial of his motion for a trial transcript to the Court of Special Appeals of Maryland, contending that Maryland Rule 1 — 325(b) violated his Sixth Amendment right to counsel of choice and his rights guaranteed by the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Court of Special Appeals reversed. The Court of Special Appeals held that, under Maryland Rule l-325(b), “where an indigent appellant who would otherwise qualify for representation by the Public Defender chooses to be represented by a qualified private attorney and that attorney elects" }, { "docid": "21574565", "title": "", "text": "1500, 16 L.Ed.2d 577 (1966) (emphasis added), and attempts to provide indigents with an “adequate opportunity to present their claims fairly within the [appellate] system,” Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444-45, 41 L.Ed.2d 341 (1974). See Griffin v. Illinois, 351 U.S. 12, 16-19, 76 S.Ct. 585, 589-90, 100 L.Ed. 891 (1956) (plurality opinion). In applying section 671.3(b)(3), the Appellate Division merely attributed to Fullan the non-contingent benefactions of others in determining whether “his financial inability to retain counsel and to pay the costs and expenses of the appeal” necessitated the provision of transcripts at state expense. Echoing the apparent sentiment of the Appellate Division, the district court concluded that “Fullan, whose family and friends have raised $10,000 for his appeal, is in no different a position than the defendant who has $10,000 of his own money to spend on appeal.” I agree. While every defendant who retains appellate counsel would undoubtedly prefer that the state foot the bill for the trial transcript, the Constitution simply does not require a state to provide a free transcript to a defendant who has access to substantial funds for purposes of appeal. Thus, while Fullan apparently is personally financially unable to retain counsel, the application of section 671.3(b)(3) to him in his circumstances cannot rationally be said to foreclose his right to appeal. Fullan is not barred from receiving a transcript at state expense. He simply can’t get one on his own terms. Furthermore, Fullan is under no compulsion to accept private representation, but may apply for assigned counsel pursuant to N.Y. County Law § 722(4) (McKinney Supp. 1989) and N.Y.Crim.Proc.Law § 460.70 (McKinney 1983). Upon the assignment of counsel, a transcript of the lower court proceedings will be furnished without charge. Having voluntarily accepted private representation, Fullan’s contention that he was financially unable to retain counsel and therefore should be provided with a transcript at state expense has a hollow ring. It is inconceivable that family and friends who have raised $10,000 for Fullan’s appeal would restrict the use of those funds to the payment of counsel fees" }, { "docid": "4951130", "title": "", "text": "apply for public defender services in order to receive a free transcript, the State sought to deny him counsel of choice, treated him differently solely because of his indigency, and ultimately deprived him of “adequate and effective appellate review.” He maintains that the State created a Hobson’s choice whereby an indigent criminal appellant who seeks to assert his constitutional right to a state-provided transcript must forfeit his right to the attorney of his choice for no compelling reason. 1 We agree with Miller’s assessment. Although procedural as the State maintains, the requirement of application for public representation did interfere with Miller’s right to retain his counsel of choice and his ability to receive the transcript he needed to appeal. Indeed, the State’s interpretation of Rule 1-325(b) as mandating application to the public defender’s office forced Miller, to choose between his secured counsel and the necessary trial record. Although he had an attorney at no cost to the State, Miller was told he must give up that attornéy in order to receive a free transcript. When he insisted on retaining his pro bono counsel, he was denied the transcript. The state court then dismissed his appeal due to the missing transcript. It is thus abundantly clear that, in Maryland, an indigent seeking a transcript for appeal has only one route available, and that route— seeking public defender representation — requires forfeiting another constitutional right. Forcing a criminal defendant to surrender one constitutional right “in order to assert another” is “intolerable.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976-77, 19 L.Ed.2d 1247 (1968) (describing situation whereby defendant was obliged either to forfeit what he believed to be a valid Fourth Amendment claim or to waive his Fifth Amendment privilege against self incrimination); see also Lefkowitz v. Cunningham, 431 U.S. 801, 807-08, 97 S.Ct. 2132, 2136-37, 53 L.Ed.2d 1 (1977) (finding state statute impermissibly coercive, in part because it forces forfeiture of one constitutional right as the price for exercising another); United States v. Ryan, 810 F.2d 650, 656 (7th Cir.1987) (recognizing that government is precluded from “coercing the" }, { "docid": "4951149", "title": "", "text": "of counsel. See United States v. Voigt, 89 F.3d 1050, 1074 (3rd Cir.1996) (discussing and categorizing counsel-of-choice cases). Accepted practice calls for judicial balancing of the asserted governmental interests against the defendant's right to proceed with his chosen counsel. See Corporan-Cuevas, 35 F.3d at 956. Valid justifications for trumping the right have focused on the integrity of the judicial process and concerned such matters as the orderly administration of justice, see, e.g., Mullen, 32 F.3d at 895; potential attorney-client conflicts of interest, see, e.g., Wheat, 486 U.S. at 164, 108 S.Ct. at 1699-1700, and attorneys' ethical problems, see, e.g., D’Amore, 56 F.3d at 1204. Defendants have also challenged the impact of court rules or statutes on their right to counsel of choice. See, e.g., Caplin, 491 U.S. at 624, 109 S.Ct. at 2651-52 (claim that forfeiture laws infringed upon right); United States v. Weisman, 858 F.2d 389, 390 (8th Cir.1988) (same), cert. denied, 489 U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 820 (1989). . The state court of appeals noted that the rule ensures that control over expenditures for transcripts is vested in the public defender's office. There is no evidence, however, that appellants with pro bono counsel seek unnecessary transcripts. In fact, Miller sought only those portions of his trial transcript relevant to his direct appeal. HAMILTON, Circuit Judge, dissenting: I cannot agree with the majority’s conclusion that Miller’s constitutional rights were violated in this case. Therefore, I respectfully dissent. The premise of the majority’s conclusion is that the State of Maryland forced Miller to forfeit his constitutional right to an attorney of his choice when he sought to assert his constitutional right to a trial transcript at state expense. This premise is flawed, however, because the State of Maryland never deprived Miller of his constitutional right to counsel of his choice. The Sixth Amendment to the Constitution guarantees that “[i]n all criminal prosecu tions, the accused shall enjoy the right ... to have the Assistance of Counsel for his de-fence.” U.S. CONST. amend. VI. The right to counsel confers on a state criminal defendant the absolute right to" }, { "docid": "16475088", "title": "", "text": "Drysdale Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. at 2651, 2651-2652, 105 L.Ed.2d 528 (1989). The state has conceded that Miller needed a transcript in order to receive adequate appellate review and that, as an indigent, he qualified for state-funded services. The state has further acknowledged that Miller was denied a free transcript solely because he received legal representation outside the auspices of the public defender’s office. By interpreting Rule l-325(b) to require that he apply for public defender services in order to receive a free transcript, the state denied Miller his counsel of choice, treated him differently solely because of his indigen-cy, and ultimately deprived him of “adequate and effective appellate review.” Miller was presented with a Hobson’s choice whereby, in order to exercise his constitutional right to a transcript necessary for his appeal, he must forfeit his right to the attorney of his choice for no compelling reason. Indeed, the state’s interpretation of Rule l-325(b) as mandating application to the public defender’s office forced Miller to choose between his secured counsel and the necessary trial record. Although he had an attorney at no cost to the state, Miller was told he must give up that attorney in order to receive a free transcript. When he insisted on retaining his pro bono counsel, he was denied the transcript. The state court then dismissed his appeal due to the missing transcript. It is thus abundantly clear that, in Maryland, an indigent seeking a tran script for appeal has only one route available, and that route — seeking public defender representation — requires forfeiting another constitutional right. Forcing a criminal defendant to surrender one constitutional right “in order to assert another” is “intolerable.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968). We previously have found it impermissible to compel a civil litigant to forego some constitutional rights in order to assert others. See Tomai-Minogue v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228, 1232 (4th Cir.1985). It is even more egregious to subject a criminal defendant to such a" }, { "docid": "21574548", "title": "", "text": "attempt to allocate any funds for the transcripts. The Justices of the Appellate Division believe that an application such as that filed by counsel would seem to come with ill grace, when the result would be that counsel receives $10,000 for handling the appeal, but the taxpayers of this state would have to bear the cost of paying for the transcript. In an Opinion dated January 20, 1989 (“Opinion”), the district court denied Ful-lan’s petition, stating that no authority has been cited to establish that the Constitution requires a state to provide free trial minutes to a defendant who has access to substantial funds for purposes of appeal. Fullan, whose family and friends have raised $10,000 for his appeal, is in no different a position than the defendant who has $10,000 of his own money to spend on appeal. Fullan has failed to prove the requisite financial need. Id. at 3. The court cited § 671.3(b)(3) of the Rules of the Second Department, which provides that an appellant in a criminal case has the right, upon proof of his financial inability to retain counsel and to pay the costs and expenses of the appeal, to make application to the appellate court for the following relief: for the assignment of counsel to prosecute the appeal; for leave to prosecute the appeal as a poor person and to dispense with printing; and if stenographic minutes were taken, for a direction to the clerk and the stenographer of the trial court that a typewritten transcript of such minutes be furnished without charge to the appellant’s assigned counsel or, if appellant prosecutes the appeal pro se, to appellant. McKinney’s 1989 New York Rules of Court § 671.3(b)(3) (emphasis added). The court found that this section, granting a transcript only where counsel is assigned, while denying it where counsel is retained, does not violate a defendant’s rights to due process or equal protection to the extent that it links a defendant’s ability to retain counsel with his ability to pay the costs and expenses of an appeal by prohibiting retained counsel from receiving minutes paid" }, { "docid": "4951150", "title": "", "text": "control over expenditures for transcripts is vested in the public defender's office. There is no evidence, however, that appellants with pro bono counsel seek unnecessary transcripts. In fact, Miller sought only those portions of his trial transcript relevant to his direct appeal. HAMILTON, Circuit Judge, dissenting: I cannot agree with the majority’s conclusion that Miller’s constitutional rights were violated in this case. Therefore, I respectfully dissent. The premise of the majority’s conclusion is that the State of Maryland forced Miller to forfeit his constitutional right to an attorney of his choice when he sought to assert his constitutional right to a trial transcript at state expense. This premise is flawed, however, because the State of Maryland never deprived Miller of his constitutional right to counsel of his choice. The Sixth Amendment to the Constitution guarantees that “[i]n all criminal prosecu tions, the accused shall enjoy the right ... to have the Assistance of Counsel for his de-fence.” U.S. CONST. amend. VI. The right to counsel confers on a state criminal defendant the absolute right to be represented by counsel at trial, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and, provided the state has appellate review, on a first direct appeal, see Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The Sixth Amendment also protects a criminal defendant’s right to counsel of his or her choice. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988). However, unlike the right to counsel, the right to counsel of choice is not absolute. See United States v. Gallop, 838 F.2d 105, 107 (4th Cir.), cert. denied, 487 U.S. 1211, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). The right to counsel of choice enables a criminal defendant “to select and be represented by [his or her] preferred attorney.” Wheat, 486 U.S. at 159, 108 S.Ct. at 1697. However, a criminal defendant cannot “insist on representation by an attorney he [or she] cannot afford.” Id. This is so because the protections of the Sixth Amendment right" }, { "docid": "4951129", "title": "", "text": "indigent receiving public representation, see Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 2651-52, 105 L.Ed.2d 528 (1989); United States v. Childress, 58 F.3d 693, 736 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 825, 133 L.Ed.2d 768 (1996), but does apply to an indigent able to secure pro bono counsel, see Caplin, 491 U.S. at 624-25, 109 S.Ct. at 2652 (“Nor does the Government deny that the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.”). C The State has conceded that Miller needed a transcript in order to receive adequate appellate review and that, as an indigent, he qualified for state-funded services. The State has further acknowledged that Miller was denied a free transcript solely because he received legal representation outside the auspices of the public defender’s office. Miller argues, therefore, that by interpreting Rule 1-325(b) to require that he apply for public defender services in order to receive a free transcript, the State sought to deny him counsel of choice, treated him differently solely because of his indigency, and ultimately deprived him of “adequate and effective appellate review.” He maintains that the State created a Hobson’s choice whereby an indigent criminal appellant who seeks to assert his constitutional right to a state-provided transcript must forfeit his right to the attorney of his choice for no compelling reason. 1 We agree with Miller’s assessment. Although procedural as the State maintains, the requirement of application for public representation did interfere with Miller’s right to retain his counsel of choice and his ability to receive the transcript he needed to appeal. Indeed, the State’s interpretation of Rule 1-325(b) as mandating application to the public defender’s office forced Miller, to choose between his secured counsel and the necessary trial record. Although he had an attorney at no cost to the State, Miller was told he must give up that attornéy in order to receive a free transcript. When" }, { "docid": "4951128", "title": "", "text": "(1988); Evitts, 469 U.S. at 396-97, 105 S.Ct. at 836-37; accord Nelson, 415 F.2d at 1157. We have recognized that the right to counsel of choice “is premised on respect for the individual,” and characterized it as “an essential element” of the right to counsel. United States v. Mullen, 32 F.3d 891, 895 (4th Cir.1994) (citation omitted); see also United States v. Gallop, 838 F.2d 105, 107 (4th Cir.), cert. denied, 487 U.S. 1211, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). Because we discern no reason for withholding that important component of the fundamental right to counsel on appeal, we decline to do so here. See Nelson, 415 F.2d at 1157 (once the state creates an appellate system, it must provide an unqualified right to counsel). In addition, we realize that “a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant.” Wheat, 486 U.S. at 159, 108 S.Ct. at 1697. Thus, the right to counsel of choice does not extend to an indigent receiving public representation, see Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 2651-52, 105 L.Ed.2d 528 (1989); United States v. Childress, 58 F.3d 693, 736 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 825, 133 L.Ed.2d 768 (1996), but does apply to an indigent able to secure pro bono counsel, see Caplin, 491 U.S. at 624-25, 109 S.Ct. at 2652 (“Nor does the Government deny that the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.”). C The State has conceded that Miller needed a transcript in order to receive adequate appellate review and that, as an indigent, he qualified for state-funded services. The State has further acknowledged that Miller was denied a free transcript solely because he received legal representation outside the auspices of the public defender’s office. Miller argues, therefore, that by interpreting Rule 1-325(b) to require that he" }, { "docid": "21574566", "title": "", "text": "to provide a free transcript to a defendant who has access to substantial funds for purposes of appeal. Thus, while Fullan apparently is personally financially unable to retain counsel, the application of section 671.3(b)(3) to him in his circumstances cannot rationally be said to foreclose his right to appeal. Fullan is not barred from receiving a transcript at state expense. He simply can’t get one on his own terms. Furthermore, Fullan is under no compulsion to accept private representation, but may apply for assigned counsel pursuant to N.Y. County Law § 722(4) (McKinney Supp. 1989) and N.Y.Crim.Proc.Law § 460.70 (McKinney 1983). Upon the assignment of counsel, a transcript of the lower court proceedings will be furnished without charge. Having voluntarily accepted private representation, Fullan’s contention that he was financially unable to retain counsel and therefore should be provided with a transcript at state expense has a hollow ring. It is inconceivable that family and friends who have raised $10,000 for Fullan’s appeal would restrict the use of those funds to the payment of counsel fees if they knew that the appeal could not be perfected without a trial transcript. An offer of assistance subject to such a restriction would be empty and self-defeating. An interpretation of section 671.3(b)(3) that equates Fullan’s situation with that of an indigent hardly compliments the constitutional protections for indigent criminal appellants under the Fourteenth Amendment. Finally, the rule espoused by the majority today invites widespread abuse. There is nothing to prevent supporters of criminal appellants from raising $25,000, $50,000 or $100,000 for a defense fund expressly limited to paying “attorney’s fees” only for a more expensive criminal defense lawyer. The majority’s holding will also require the Appellate Division to engage in detailed factfinding regarding the source of an appellate attorney’s fee and, potentially, the complicated financial relationships that might exist between defendants and their benefactors. This, the Constitution does not require. I would affirm the judgment of the district court." }, { "docid": "16475095", "title": "", "text": "as well, for as the Third Circuit has observed, the Supreme Court notes in Wheat that the right to counsel of choice is not a species of the right to self-representation. See Fuller v. Diesslin, 868 F.2d 604, 608 (3rd Cir.) (citing Wheat, 486 U.S. at 159 n. 3, 108 S.Ct. at 1697 n. 3), cert. denied, 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). . Neither the Supreme Court nor any of our sister circuits appears to have held otherwise. See, e.g., United States v. Friedman, 849 F.2d 1488, 1490 n. 5 (D.C.Cir.1988) (assuming, without deciding, that the right to counsel of choice applies to the first appeal as of right), cert. denied, 498 U.S. 1110, 111 S.Ct. 1020, 112 L.Ed.2d 1101 (1991). . An affluent defendant would not have to accept representation by the public defender. . This is especially true, in cases such as the case at bar, where there is a conflict of interest between the public defender and the defendant. In such cases, the public defender may not be an acceptable choice for the defendant. . The circumstances here appear especially pernicious because Miller has offered a particularly compelling reason for refusing public defender representation. The fact that the state has procedures in place for assigning to panel attorneys cases in which the public defender’s office has a conflict of interest does not justify forcing that option upon an indigent who has available the free services of another attorney. The lawyer’s integrity and ability in the instant case have been in no way disparaged." }, { "docid": "16475063", "title": "", "text": "Maryland Rule 1-325(b) violated his right to counsel of choice. As his argument goes, Miller had a Sixth Amendment right to have Bray represent him on his appeal to the Court of Special Appeals of Maryland. We disagree. The Sixth Amendment to the Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. CONST, amend. VI. The right to counsel confers on a state criminal defendant the absolute right to be represented by counsel at trial, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and, provided the state has appellate review, on a first direct appeal, see Douglas, 372 U.S. at 360, 83 S.Ct. at 818. The Sixth Amendment also protects a criminal defendant’s right to counsel of choice. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988) (noting that “the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment”). However, unlike the right to counsel, the right to counsel of choice is not absolute. See United States v. Gallop, 838 F.2d 105, 107 (4th Cir.1988); see also Wheat, 486 U.S. at 159, 108 S.Ct. at 1697 (recognizing that the “right to choose one’s own counsel is circumscribed in several important respects”). Thus, a criminal defendant cannot “insist on representation by an attorney he cannot afford,” Wheat, 486 U.S. at 159, 108 S.Ct. at 1697, because the protections of the right to counsel of choice do not extend “beyond ‘the individual’s right to spend his own money to obtain the advice and assistance of ... counsel.’ ” Caplin & Drysdale Chartered v. United States, 491 U.S. 617, 626, 109 S.Ct. 2646, 2652, 105 L.Ed.2d 528 (1989) (quoting Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 370, 105 S.Ct. 3180, 3215, 87 L.Ed.2d 220 (1985) (Stevens, J., dissenting)); see also Wheat, 486 U.S. at 159, 108 S.Ct. at 1697 (noting that “the essential aim of the [Sixth] Amendment is to guarantee an effective advocate" }, { "docid": "16475092", "title": "", "text": "with a transcript to perfect his appeal, though generally making them available to other indigent defendants, violates Miller’s constitutional rights. Maryland Rule 1-325(b) requires an indigent criminal defendant with legal representation to forfeit his counsel of choice in order to obtain a transcript needed for appeal. Thus, for no compelling reason, an indigent seeking to appeal his conviction is forced to choose between his constitutional rights in a way that a wealthier defendant is not. That outcome cannot be judged consistent with the guarantee of meaningful access to justice. The Maryland Rule is unconstitutional and Miller is entitled to a transcript and an opportunity to appeal his conviction and sentence. The Supreme Court recently stated in M.L.B. that “[i]n States providing criminal appeals ... an indigent’s access to appeal, through a transcript of relevant trial proceedings, is secure under our precedent.” Since I believe that the court’s opinion in the case at bar places the very security of a defendant’s right to a transcript at risk, I respectfully dissent. K.K. HALL and MICHAEL, JJ., join in this dissent. . Public defenders are compensated by the state and share facilities; as such they resemble a law firm. Therefore, public defenders, just as two partners or associates of a law firm cannot represent antagonistic positions. .In the Court noted that the Griffin requirement is not rigid. Alternative methods of reporting trial proceedings ... are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. Moreover, ... an indigent defendant is entitled only to those parts of the trial record that are germane to consideration of the appeal. - U.S. at - n.5, 117 S.Ct. at 561-562 n.5. Therefore, Maryland could have limited a defendant’s right to the entire transcript, but it clearly cannot limit his right to those parts of the record which are necessary for his appeal. It should be noted that Miller has only sought those parts of the transcript which are relevant to his direct appeal. . The New York Rule provided that \"a typewritten transcript of" }, { "docid": "16475087", "title": "", "text": "S.Ct. at 1093, the Supreme Court has repeatedly affirmed that the Fourteenth Amendment’s promise of meaningful access entitles an indigent to the effective assistance of counsel on appeal. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436, 108 S.Ct. 1895, 1900-1901, 100 L.Ed.2d 440 (1988). We have recognized that the right to counsel of choice “is premised on respect for the individual,” and characterized it as “an essential element” of the right to counsel. United States v. Mullen, 32 F.3d 891, 895 (4th Cir.1994) (citation omitted). Because I discern no reason for withholding that important component of the fundamental right to counsel on appeal, I would decline to do so here. Since “a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant,” Wheat, 486 U.S. at 159, 108 S.Ct. at 1697, the right to counsel of choice does not extend to an indigent receiving public representation, but does apply to an indigent able to secure pro bono counsel. Caplin & Drysdale Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. at 2651, 2651-2652, 105 L.Ed.2d 528 (1989). The state has conceded that Miller needed a transcript in order to receive adequate appellate review and that, as an indigent, he qualified for state-funded services. The state has further acknowledged that Miller was denied a free transcript solely because he received legal representation outside the auspices of the public defender’s office. By interpreting Rule l-325(b) to require that he apply for public defender services in order to receive a free transcript, the state denied Miller his counsel of choice, treated him differently solely because of his indigen-cy, and ultimately deprived him of “adequate and effective appellate review.” Miller was presented with a Hobson’s choice whereby, in order to exercise his constitutional right to a transcript necessary for his appeal, he must forfeit his right to the attorney of his choice for no compelling reason. Indeed, the state’s interpretation of Rule l-325(b) as mandating application to the public defender’s office forced Miller to choose between his secured" }, { "docid": "22200294", "title": "", "text": "transcripts and orders reflecting Dickstein’s obstreperous conduct before other federal district courts. See rec. vol. X, doc. '51. . See also Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4 (1954) (\"a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise the right to be heard by counsel would be of little worth\"); Glosser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942) (\"[defendant] wished the benefit of the undivided assistance of counsel of his own choice. We think that such a desire on the part of an accused should be respected.”). . A defendant's right to secure counsel of his choice is cognizable only insofar as defendant is able to retain counsel with private funds. An indigent defendant must be provided with counsel at state expense, Gideon v. Wainwright, 372 U.S. 335, 343-44, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963), and appointed counsel are held to the same standard of competence as retained counsel, United States v. Gipson, 693 F.2d 109, 111 n. 1 (10th Cir.1982), cert. denied, 459 U.S. 1216, 103 S.Ct. 1218, 75 L.Ed.2d 455 (1983). However, \"an indigent defendant does not have a right to choose appointed counsel.\" United States v. Nichols, 841 F.2d 1485 (10th Cir.1988). . The Supreme Court has rejected •attorneys’ claims that a state’s denial of admission pro hac vice violates their rights under the Privilege and Immunities Clauses and the fourteenth amendment. See Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985); Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979). The Court has not addressed, however, whether such a denial violates defendants' rights under the sixth amendment. See Leis, 439 U.S. at 442 n. 4, 99 S.Ct. at 701 n. 4; Fuller v. Diesslin, 868 F.2d 604, 607 (3d Cir.1989). . Defendant argues that, in revoking Dickstein’s pro hac vice status, the district court failed to follow W.D.Okla.R. 4(J) governing attorney disciplinary procedures. We need not address this argument because defendant" }, { "docid": "16475094", "title": "", "text": "such minutes [shall] be furnished without charge to the appellant's assigned counsel or, if appellant prosecutes the appeal pro se, to appellant.” McKinney’s 1989 New York Rule of Court § 671.3(b)(3). . Miller’s counsel would appear pro bono publi-co. . The State advances the proposition that an indigent has no right to counsel of his own choosing. In fact, every circuit court and the U.S. Supreme Court has recognized that a criminal defendant has a qualified right to counsel of choice. See, e.g., United States v. Inman, 483 F.2d 738, 739-40 (4th Cir.1973) (\"The Sixth Amendment right to counsel includes ... the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing.”), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.2d 766 (1974). The state further argues that there is no constitutional right to self-representation on appeal, and thus no right to counsel of choice. We find that argument weak as well, for as the Third Circuit has observed, the Supreme Court notes in Wheat that the right to counsel of choice is not a species of the right to self-representation. See Fuller v. Diesslin, 868 F.2d 604, 608 (3rd Cir.) (citing Wheat, 486 U.S. at 159 n. 3, 108 S.Ct. at 1697 n. 3), cert. denied, 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). . Neither the Supreme Court nor any of our sister circuits appears to have held otherwise. See, e.g., United States v. Friedman, 849 F.2d 1488, 1490 n. 5 (D.C.Cir.1988) (assuming, without deciding, that the right to counsel of choice applies to the first appeal as of right), cert. denied, 498 U.S. 1110, 111 S.Ct. 1020, 112 L.Ed.2d 1101 (1991). . An affluent defendant would not have to accept representation by the public defender. . This is especially true, in cases such as the case at bar, where there is a conflict of interest between the public defender and the defendant. In such cases, the public defender may not" }, { "docid": "16475093", "title": "", "text": "in this dissent. . Public defenders are compensated by the state and share facilities; as such they resemble a law firm. Therefore, public defenders, just as two partners or associates of a law firm cannot represent antagonistic positions. .In the Court noted that the Griffin requirement is not rigid. Alternative methods of reporting trial proceedings ... are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. Moreover, ... an indigent defendant is entitled only to those parts of the trial record that are germane to consideration of the appeal. - U.S. at - n.5, 117 S.Ct. at 561-562 n.5. Therefore, Maryland could have limited a defendant’s right to the entire transcript, but it clearly cannot limit his right to those parts of the record which are necessary for his appeal. It should be noted that Miller has only sought those parts of the transcript which are relevant to his direct appeal. . The New York Rule provided that \"a typewritten transcript of such minutes [shall] be furnished without charge to the appellant's assigned counsel or, if appellant prosecutes the appeal pro se, to appellant.” McKinney’s 1989 New York Rule of Court § 671.3(b)(3). . Miller’s counsel would appear pro bono publi-co. . The State advances the proposition that an indigent has no right to counsel of his own choosing. In fact, every circuit court and the U.S. Supreme Court has recognized that a criminal defendant has a qualified right to counsel of choice. See, e.g., United States v. Inman, 483 F.2d 738, 739-40 (4th Cir.1973) (\"The Sixth Amendment right to counsel includes ... the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing.”), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.2d 766 (1974). The state further argues that there is no constitutional right to self-representation on appeal, and thus no right to counsel of choice. We find that argument weak" }, { "docid": "4951145", "title": "", "text": "a qualified right to counsel of choice. See, e.g., United States v. Inman, 483 F.2d 738, 739-40 (4th Cir.1973) (\"The Sixth Amendment right to counsel includes ... the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing.”), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.2d 766 (1974). The State further argues that there is no constitutional right to self representation on appeal, and thus no right to counsel of choice. We find that argument weak as well, for as the Third Circuit has observed, the Supreme Court notes in Wheat that the right to counsel of choice is not a species of the right to self representation. See Fuller v. Diesslin, 868 F.2d 604, 608 (3rd Cir.) (citing Wheat, 486 U.S. at 159 n. 3, 108 S.Ct. at 1697 n. 3), cert. denied, 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). . The Supreme Court has recognized that the right also has a basis in the Fourteenth Amendment's promise of due process of law. See Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). Circuit courts of appeal generally treat the right as derived from the Sixth Amendment. See, e.g., Corporan-Cuevas, 35 F.3d at 956; United States v. Friedman, 849 F.2d 1488, 1490 (D.C.Cir.1988), cert. denied, 498 U.S. 1110, 111 S.Ct. 1020, 112 L.Ed.2d 1101 (1991). . Neither the Supreme Court nor any of our sister circuits appear to have held otherwise. See, e.g., Friedman, 849 F.2d at 1490 n. 5 (assuming, without deciding, that the right to counsel of choice applies to the first appeal as of right). . Later cases have distinguished Simmons on factual or other grounds without dispelling its notion that a criminal defendant must not be forced to surrender one constitutional right in order to exercise another. See, e.g., United States v. Kahan, 415 U.S. 239, 242-43, 94 S.Ct. 1179, 1180-81, 39 L.Ed.2d 297 (1974) (distinguishing Simmons because respondent did" }, { "docid": "4951144", "title": "", "text": "the State, regardless of how other individuals in the same situation may be treated[,]” while equal protection \"emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” Id. . The government may refuse to provide a transcript to an indigent appellant only when an adequate alternative is available, Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433-34, 30 L.Ed.2d 400 (1971); Riggins v. Rees, 74 F.3d 732, 735 (6th Cir.1996); United States v. Talbert, 706 F.2d 464, 469 (4th Cir.1983), or if the defendant has waived a prior opportunity to obtain a transcript and makes a frivolous request, United States v. MacCollom, 426 U.S. 317, 326-27, 96 S.Ct. 2086, 2092, 48 L.Ed.2d 666 (1976) (federal defendant seeking transcript to pursue collateral relief). Neither situation is present in the case at bar. . The State advances the proposition that an indigent has no right to counsel of his own choosing. In fact, every circuit court and the U.S. Supreme Court has recognized that a criminal defendant has a qualified right to counsel of choice. See, e.g., United States v. Inman, 483 F.2d 738, 739-40 (4th Cir.1973) (\"The Sixth Amendment right to counsel includes ... the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing.”), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.2d 766 (1974). The State further argues that there is no constitutional right to self representation on appeal, and thus no right to counsel of choice. We find that argument weak as well, for as the Third Circuit has observed, the Supreme Court notes in Wheat that the right to counsel of choice is not a species of the right to self representation. See Fuller v. Diesslin, 868 F.2d 604, 608 (3rd Cir.) (citing Wheat, 486 U.S. at 159 n. 3, 108 S.Ct. at 1697 n. 3), cert. denied, 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). . The Supreme Court has" } ]

[ { "docid": "1834357", "title": "", "text": "and capricious, and caused his involuntary discharge from the Army. DISCUSSION 1. Background Motions for judgment on the administrative record are reviewed according to the same standard as motions for summary judgement. See RCFC 56.1(a); Hoskins v. United States, 40 Fed.Cl. 259, 270 (1998). Judgment on the administrative record is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Neither party in this case argues that there are any genuine issues of material fact. Whether it is so or not is not the issue. The issue is, notwithstanding such — whether in truth and in fact there are clearly genuine issues of material fact. In military personnel matters, a plaintiff has the burden of proving by clear and convincing evidence that the action of the administrative board is “arbitrary, capricious, contrary to law or unsupported by substantial evidence.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed.Cir.1986), cert. denied, 479 U.S. 853, 107 S.Ct. 188, 93 L.Ed.2d 121 (1986); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 811 (1979). In order to meet this burden, a plaintiff must prove two elements: (i) a legal error or injustice in the correction board proceeding; and (ii) an adequate nexus or link between the error and some adverse action such as a passover or nonselection for promotion. Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704, 706 (1980). The first element, commission of a legal error by an administrative board, can be based on either “legal error or material factual error, or injustice amounting to such error____” Sanders, 594 F.2d at 813. An “injustice” might be based on the failure by the Correction Board to correct either a gross material error of fact or to correct an action contrary to all evidence. Id. The failure to correct such errors, however, must be “arbitrary and capricious, or in bad faith, or contrary to law, or without rational basis, seriously prejudicial to plaintiff," } ]

[ { "docid": "1919700", "title": "", "text": "properly exercise wide discretion in their evaluation of bids and the application of procurement regulations. See Electro-Methods, Inc. v. United States, 7 Cl.Ct. 755, 762 (1985); see RADVA Corp. v. United States, 17 Cl.Ct. 812, 818 (1989), aff'd without op., 914 F.2d 271 (Fed.Cir.1990). This discretion is espe cially broad in negotiated procurements, such as the one involved in the present case. See CACI Field Servs., Inc. v. United States, 13 Cl.Ct. 718, 726 (1987), aff'd, 854 F.2d 464 (Fed.Cir.1988). In this regard, “the court cannot substitute its judgment for that of the agency if reasonable minds could reach differing conclusions but must give deference to the agency’s findings and conclusions.” CRC Marine Servs., Inc. v. United States, 41 Fed. Cl. 66, 83 (1998). Indeed, “[t]he court should ... intervene only when it is clearly deter mined that the agency’s determinations were irrational or unreasonable.” Baird Corp. v. United States, 1 Cl.Ct. 662, 664 (1983). As long as a rational basis is articulated and relevant factors are considered, the agency’s action must be upheld. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). We decide this case on Garufi’s and the government’s cross-motions for summary judgment on the administrative record. Motions for judgment upon the administrative record are treated in accordance with the rules governing motions for summary judgment. See RCFC 56.1; see Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255 (Fed.Cir.1997). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Jay v. Secretary of Health and Human Services, 998 F.2d 979, 982 (Fed.Cir.1993). A fact is material if it might significantly affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issues of material" }, { "docid": "10471386", "title": "", "text": "correction and/or clarification. Further argument was postponed. On July 23, 1999, MVM filed a motion to supplement the administrative record with Carlson’s affidavit and a motion for leave to amend the complaint. Despite opposition from both the United States and Akal on both motions, the Court granted both. The Court permitted all parties to file supplemental briefs on the motions for summary judgment. The supplemental briefs addressed the two remaining issues, which are discussed in this opinion. Finally, the Court heard oral argument on these two issues in the cross-motions for summary judgment on September 13,1999. III. Standard in Ruling on Motions for Summary Judgment Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Jay v. Secretary, DHHS, 998 F.2d 979 (Fed.Cir.1993). A fact is material if it might significantly affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248, 106 S.Ct. at 2510. The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). The court must resolve any doubts about factual issues in favor of the non-moving party, Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307 (Fed.Cir.1998) and draw all reasonable inferences in its favor. See Gasser Chair Co. v. Infanti Chair Mfg. Corp., 60 F.3d 770, 773 (Fed.Cir.1995). The fact that both parties have moved for summary judgment is not an admission that no material facts remain in issue. Massey v. Del Laboratories, Inc., 118 F.3d 1568, 1573 (Fed.Cir.1997). See also Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988). Summary judgment will not necessarily be granted to one party or another simply because both parties have moved for summary judgment. Corman v. United States, 26 Cl.Ct. 1011, 1014" }, { "docid": "9501833", "title": "", "text": "on the voluntariness issue.” Tippett v. United States, 185 F.3d 1250, 1255 (Fed.Cir.1999). In accord with this precedent, the Court conducted an evidentiary hearing on April 19 and 20, 2004, at which the parties were afforded the opportunity to present evidence related to MSgt. Metz’s claim that his separation was involuntary because of ineffective assistance of counsel. 2. Summary Judgment Upon the Administrative Record For motions under RCFC 56.1, i.e., for summary judgment upon, review of decisions on the basis of an administrative record, this Court applies the same standard as that applied to motions for summary judgment under RCFC 56. See RCFC 56.1(a); Roth v. United States, 56 Fed.Cl. 239, 244-45 (2003). Summary judgment is appropriate if there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This Court’s role in military record cases is a limited one. “It has long been established that it is ‘beyond the institutional competence of courts to review’ the substance of decisions that have been left exclusively to the discretion of the military.” Roth, 56 Fed.Cl. at 244 (quoting Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.Cir.2002)). See also Groves v. United States, 47 F.3d 1140, 1144 (Fed.Cir.1995) (“no court is qualified to review the substantive merits of a decision [committed to the discretion of the military], so long as the decision comports with any procedural standards mandated by statute or regulation”). Accordingly, when the Court, in the context of a motion made under Rule 56.1, is “called upon to review a decision of a corrections board, ... the standard of review is whether the decision is arbitrary, capricious, unsupported by substantial evidence, or contrary to law.” Porter v. United States, 163 F.3d 1304, 1312 (Fed.Cir.1998); see also Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed.Cir.1986); Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804, 811 (1979); Roth, 56 Fed.Cl. at 245. In undertaking its review under Rule 56.1, this" }, { "docid": "9422747", "title": "", "text": "Summary Judgment Standards Summary judgment is appropriate when there is no dispute over any genuine issue of material fact and the movant is entitled to judgment as a matter of law. RCFC 56. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entiy of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, the court must view the evidence and all factual inferences in the light most favorable to the non-moving party. Litton Indus. Prod., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed.Cir.1985). The moving party bears the initial burden of showing that there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may discharge its burden by “pointing out ... that there is an absence of evidence to support the non-moving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1563 (Fed.Cir.1987). If the mov-ant succeeds in satisfying its burden, the non-movant must then demonstrate, by appropriate evidence, the existence of a genuine issue of material fact. Beauchamp Constr. Co. Inc. v. United States, 14 Cl.Ct. 430, 435 (1988). With the following considerations firmly in mind, we turn to the parties’ cross-motions for partial summary judgment. The first step in considering a motion for summary judgment is to ascertain whether any genuine issues as to a material fact are present. To evaluate whether a factual dispute is material, one must look to the legal standards applicable to the subject of the suit. Only legally significant facts, i.e., those that would change the outcome of the litigation, are deemed material. If it is determined that no genuine issues of material fact are in dispute, the court is then in a position to decide whether the moving party is entitled to judgment as a matter of law. Because we can find no genuine issues of material fact on this record, we conclude that," }, { "docid": "10391541", "title": "", "text": "the attention of the court to evidence in the record sufficient to establish that there is a genuine issue of material fact requiring a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The responding party may not rest upon mere allegations made in the pleadings as a means of establishing a genuine issue worthy of trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If no issue of fact is presented and if the mover is entitled to judgment as a matter of law, the court is required to render the judgment prayed for. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; FRCP 56(c). Before it can find that there are no genuine issues of material facts, the court must be satisfied that no reasonable trier of fact could have found for the non-moving party. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990). Further, when a party seeking summary judgment bears the burden of proof at trial, as in this case, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial. International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir.1991). The Decision of the Merit Systems Protection Board Plaintiff sought review of the propriety of his discharge before the Merit Systems Protection Board. The MSPB eventually affirmed the action of the Postal Service in discharging plaintiff. Plaintiff did not take an administrative appeal of the MSPB’s ruling and, as a result, it became a final administrative decision. Defendants moved for summary judgment affirming the decision of the MSPB; plaintiff did not file an opposition to defendants’ motion. Defendants submit that this is a “mixed” case, “one in which the Plaintiff seeks judicial review of a decision rendered by the MSPB and also alleges that he has been the victim of some type of proscribed discrimination.” Memorandum in Support of Defendants’ Motion for Summary Judgment Affirming Decision of MSPB, p. 4. A" }, { "docid": "21784767", "title": "", "text": "the court on Cross-Motions for Judgment on the Administrative Record. Plaintiff requests in-junctive relief and declaratory judgment, averring that prejudicial errors occurred during the selection process. Defendant claims that the contracting officer acted within the discretion given to her under the applicable statutes and that her conduct does not constitute an arbitrary or capricious act, or is otherwise in violation of the law. After considering the matter based on oral argument, the pleadings, the Administrative Record, and depositions, the court DENIES the plaintiff’s Motion for Judgment on the Administrative Record. The court GRANTS the defendant’s Cross-Motion for Judgment on the Administrative Record. STANDARD OF REVIEW This court was given authority to hear bid protest cases in 1996. See 28 U.S.C. § 1491(b), as amended by Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, Stat. 3870, 3874-74 (1996). The bid protest statute requires the court to apply the Administrative Procedure Act’s standard of review. See 5 U.S.C. §§ 701-706 (1994). The proper standard is whether the agency’s action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law based on the administrative record. See 5 U.S.C. § 702, 706(2)(A). A successful bid protest bears a “heavy burden of showing either that (1) the procurement official’s decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.” Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973). The Federal Circuit articulated a similar view when it said: “[T]o prevail in a protest, a protester must show not only a significant error in the procurement process, but also that the error prejudiced it.” Data General Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996). A Motion for Judgment on the Administrative Record is treated under the Rules of the U.S. Court of Federal Claims (RCFC) as a motion for summary judgment. RCFC 56.1 Summary judgment is appropriate where there are no genuine issues as to any material fact. Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d" }, { "docid": "9521020", "title": "", "text": "in the Certificate of Assessments must also include similarly readily available transcripts regarding all accrued interest, both assessed and unassessed. For the foregoing reasons, plaintiff Edmond Ghandour opposes the entry of partial summary judgment on behalf of defendant and seeks the same on his behalf. DISCUSSION A Summary Judgment Standards Summary judgment is appropriate when there is no dispute over any genuine issue of material fact and the movant is entitled to judgment as a matter of law. RCFC 56. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, the court must view the evidence and all factual inferences in the light most favorable to the non-moving party. Litton Indus. Prod., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed.Cir.1985). The moving party bears the initial burden of showing that there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may discharge its burden by “pointing out ... that there is an absence of evidence to support the non-moving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1563 (Fed.Cir.1987). If the mov-ant succeeds in satisfying its burden, the non-movant must then demonstrate, by appropriate evidence, the existence of a genuine issue of material fact. Beauchamp Constr. Co. Inc. v. United States, 14 Cl.Ct. 430, 435 (1988). With the following considerations firmly in mind, we turn to the parties’ cross-motions for partial summary judgment. The first step in considering a motion for summary judgment is to ascertain whether any genuine issues as to a material fact are present. To evaluate whether a factual dispute is material, one must look to the legal standards applicable to the subject of the suit. Only legally significant facts, i.e., those that would change the outcome of the litigation, are deemed material. If it is determined that" }, { "docid": "22564089", "title": "", "text": "Arthur R. Miller & Mary Kay Kane, 11A Federal Practice and Procedure § 2942 (1995) (“Since an injunction is regarded as an extraordinary remedy, it is not granted routinely; indeed, the court usually will refuse to exercise its equity jurisdiction unless the right to relief is clear.”). Motions for judgment on the administrative record are reviewed under the same standards as motions for summary judgment. See RCFC 56.1(a); Hoskins v. United States, 40 Fed.Cl. 259, 270 (1998). “Summary judgment is an integral part of the federal rules; it is designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56; Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A motion for summary judgment on the administrative record is often an appropriate vehicle to scrutinize an agency’s pro curement actions because the issues in such cases typically involve contractual and regulatory interpretation, thereby presenting no genuine issues of material fact. See Dynacs Eng’g Co., Inc. v. United States, 48 Fed.Cl. 124, 129-30 (2000); Analytical & Research Tech., Inc., 39 Fed.Cl. at 43. B. Is the Proposed Corrective Action Here Arbitrary, Capricious or Otherwise Contrary to Law? Following the award of the GENESIS contract to Lockheed Martin, plaintiff filed a protest with the GAO, challenging the award. Subsequently, the GAO indicated that it would likely sustain this protest. Responding to these developments, the Army proposed corrective action with four main prongs: • amend the solicitation to clarify a potential ambiguity therein relating to the description of how offerors should present their hourly rates; • reopen discussion with both offerors in areas of concern to the Army, including technical areas where an offeror received a good evaluation and regarding the qualifications of proposed" }, { "docid": "12408076", "title": "", "text": "is measured by the same standards as a motion for summary judgment. RCFC 56.1(a); Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996). Judgment upon the administrative record is proper when the record shows “that there is no genuine issue as to any material fact.” RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Review of military disability cases is limited to “determining whether a decision of the Correction Board is arbitrary, capricious, un supported by substantial evidence or contrary to applicable statutes or regulations.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed.Cir.1983); Clayton v. United States, 225 Ct.Cl. 593, 595, 1980 WL 13179 (1980); see also Champagne v. United States, 35 Fed.Cl. 198, 208 (1996), aff'd, 136 F.3d 1300 (Fed.Cir.1998). “[T]he standard of review does not require a reweighing of the evidence, but a determination whether the conclusion being reviewed is supported by substantial evidence.” Heisig, 719 F.2d at 1157. The court cannot substitute its judgment for that of the examining physicians, medical evaluation board, physical evaluation board or the Army Board for the Correction of Military Records. Heisig, 719 F.2d at 1156-57. Plaintiff bears the burden to overcome the “strong, but rebuttable, presumption that administrators of the military ... discharge their duties correctly, lawfully, and in good faith.” Champagne, 35 Fed.Cl. at 208. The burden is on plaintiff to demonstrate that the actions of the Army were arbitrary and capricious, contrary to law, or unsupported by substantial evidence, by producing “cogent and clear and convincing evidence.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed.Cir.1986). Accordingly, the scope of review is extremely narrow. Champagne, 35 Fed.Cl. at 208. 2. Whether the Army failed to follow 10 U.S.C. § 1201 The parties agree that 10 U.S.C. § 1201 in effect in 1994 is applicable to the determination contested by plaintiff. Plaintiffs Brief in Response to Court Order of January 24, 2002 (Pl.’s Supp. Brief) at 5; Defendant’s Supplemental Brief at 1. Plaintiff makes two arguments based on 10 U.S.C. § 1201. First, plaintiff contends that 10 U.S.C. § 1201 required" }, { "docid": "12408075", "title": "", "text": "result of a judgment for plaintiff will be the payment of money to plaintiff, not the placement of plaintiff in a different retirement “position,” the Secretary’s discretionary authority is not implicated. Moreover, plaintiff has alleged a wide variety of procedural defects in his separation proceedings. See Complaint 111114-20, 24-28 (alleging that the Army failed to evaluate relevant evidence and thereby failed to follow its own regulations). An administrative decision of the armed forces must be overturned if it is “arbitrary, capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation, or mandatory published procedure.” Clayton v. United States, 225 Ct.Cl. 593, 595, 1980 WL 13179 (1980); see also Murphy v. United States, 993 F.2d 871, 873 (Fed.Cir.1993). The contention that the Army’s failure to grant plaintiff disability retirement was in violation of applicable regulations is clearly justiciable by this court. For the foregoing reasons, defendant’s Motion to Dismiss is DENIED. B. Motion for Judgment on the Administrative Record 1. Standard of Review A motion for judgment upon the administrative record is measured by the same standards as a motion for summary judgment. RCFC 56.1(a); Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996). Judgment upon the administrative record is proper when the record shows “that there is no genuine issue as to any material fact.” RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Review of military disability cases is limited to “determining whether a decision of the Correction Board is arbitrary, capricious, un supported by substantial evidence or contrary to applicable statutes or regulations.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed.Cir.1983); Clayton v. United States, 225 Ct.Cl. 593, 595, 1980 WL 13179 (1980); see also Champagne v. United States, 35 Fed.Cl. 198, 208 (1996), aff'd, 136 F.3d 1300 (Fed.Cir.1998). “[T]he standard of review does not require a reweighing of the evidence, but a determination whether the conclusion being reviewed is supported by substantial evidence.” Heisig, 719 F.2d at 1157. The court cannot substitute its judgment for that of the examining physicians, medical evaluation" }, { "docid": "14402788", "title": "", "text": "its judgment on such matters for that of the agency, but should intervene only when it is clearly determined that the agency’s determinations were irrational or unreasonable. It is the burden of the aggrieved bidder to demonstrate that there was no rational basis for the agency’s determinations. Baird Corp. v. United States, 1 Cl.Ct. 662, 664 (1983). Thus, this Court’s standard of review is extremely limited. Specifically, an agency’s procurement decisions will be upheld unless the plaintiff can demonstrate that the agency’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1994); see also 28 U.S.C. § 1491(b)(4). This Court’s inquiry is based upon an examination of the “ ‘whole record’ before the agency; that is, all the material that was developed and considered by the agency in making its decision.” Cubic Applications, Inc., 37 Fed. Cl. at 342. This matter is now before this Court on the parties’ cross-motions for summary judgment upon the administrative record. The three central issues in this case are: (1) whether or not INSCOM evaluated the proposals based on the appropriate evaluation criteria set forth in the solicitation, (2) whether or not INSCOM held meaningful discussions with ART regarding deficiencies in ART’s proposal, and (3) whether or not INSCOM treated all offerors fairly during written and oral discussions. In this regard, this Court must determine, via the parties’ cross-motions for summary judgment, whether or not INSCOM followed the proper procedures in evaluating and awarding this contract for computer software and integration services. In deciding a motion for judgment upon the administrative record under RCFC 56.1, this Court follows the same rules as for a motion for summary judgment under RCFC 56. Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), affd, 113 F.3d 1255 (Fed.Cir.1997). Summary judgment is properly granted when there are no genuine issues of material fact, RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247—49, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986), and the moving party is entitled to judgment as a matter of law, RCFC 56(c); Celotex" }, { "docid": "21342931", "title": "", "text": "upon substantial evidence. There is no mistake on the part of the military departments concerning plaintiffs medical condition. The form plaintiff signed regarding the Panel’s finding clearly shows that plaintiff had been counseled on that finding and had a choice as to his desired course of action. This fact indicates to the court that plaintiff voluntarily elected to leave the Navy. The court’s determination that plaintiff voluntarily departed from military service leaves the court without jurisdiction to consider his claim. Sammt, 780 F.2d at 33. In addition, because plaintiff did not challenge his discharge in 1989, the court determines that he waived any right to now contest that discharge in a judicial forum. Maier, 754 F.2d at 984. II. Judgment upon the Administrative Record Arguendo, even if the court were to determine that it has jurisdiction over plaintiffs claim, the ease can be resolved on defendant’s motion for summary judgment upon the administrative record. Motions for judgment upon the administrative record are treated in accordance with the rules governing motions for summary judgment. RCFC 56.1; see Clifton v. United States, 31 Fed.Cl. 593, 596 (1994) (stating that, because the parties relied upon the administrative record, the motion under consideration implicated summary judgment), ajfd without op., 66 F.3d 345 (Fed.Cir.1995). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56; Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). A fact is considered material if it might significantly affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248,106 S.Ct. at 2510. The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party demonstrates an absence of genuine issues of material fact, the burden then shifts to the non-moving party to show that a genuine factual dispute exists. Sweats Fashions, Inc." }, { "docid": "8852911", "title": "", "text": "Claims reviews a Board decision to determine if it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence. Heisig v. United States, 719 F.2d 1153, 1156 (Fed.Cir.1983). In this case, the court granted summary judgment on the administrative record based on the absence of genuine issues of material fact. Fed. Cl. R. 56(c), 56.1; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review legal determinations of the Court of Federal Claims, such as a judgment on the administrative record, de novo. Heisig, 719 F.2d at 1158. We therefore apply the same standard of review: we will not disturb the Board’s decision unless we find it to be arbitrary, capricious, contrary to law, or unsupported by substantial evidence. See Haselrig v. United States, 333 F.3d 1354, 1355 (Fed.Cir.2003). As the Court of Federal Claims recognized, the pertinent facts in this case are not in dispute. Accordingly, we need only decide whether the court erred as a matter of law in the several rulings that the government challenges on appeal. We begin with the legal framework for the issues raised by the government. II. When a military officer is involuntarily separated from active duty, or mandatorily retired, for twice failing to be selected for promotion, he may apply for relief, pursuant to 10 U.S.C. § 1552(a), to the appropriate board for the correction of military records. The correction board is a civilian board, through which the Secretary of a military department “may correct any military record ... when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1) (2000). The Secretary is obligated not only to properly determine the nature of any error or injustice, but also to take “such corrective action as will appropriately and fully erase such error or compensate such injustice.” Caddington, 147 Ct.Cl. at 632, 178 F.Supp. 604. In carrying out its function, the correction board must determine “whether the applicant has demonstrated the existence of a material error or injustice that can be remedied effectively through correction of the" }, { "docid": "21658380", "title": "", "text": "this court’s scrutiny is the agency’s articulated rationale for the decision and the administrative record underlying it. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). B. Standard for Entering Judgment on the Administrative Record This action is before the court on plaintiffs motion for summary judgment on the administrative record; the government’s cross-motion for summary judgment; and intervenor’s cross-motion for summary judgment. Summary judgment is designed to secure the “ ‘just, speedy, and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting FRCP 1). Summary judgment is appropriate where there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. RCFC 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is material if it would affect the outcome of the suit. Id. at 248,106 S.Ct. 2505. Cross motions for summary judgment on the administrative record pursuant to Rule 56.1 are treated the same as a motion for summary judgment under RCFC 56(a). Chas H. Tompkins Co. v. United States, 43 Fed.Cl. 716, 719 (1999) (citing RCFC 56(a)); Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255 (Fed.Cir.1997). Having cross-moved, each party bears the burden of establishing entitlement to judgment. See Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548. C. Standard for Permanent Injunction Interstate also requests that this court issue a permanent injunction. If a plaintiff demonstrates that a procurement was unlawful, the issue then before the court is whether to grant permanent injunctive relief. To obtain a permanent injunction, plaintiff must establish: (1) actual success on the merits; (2) that it will suffer irreparable injury if injunctive relief were not granted; (3) that, if the injunction were not granted, the harm to plaintiff outweighs the harm to the government and third parties; and (4) that granting the injunction serves the public interests. Hawpe Constr., Inc. v. United States, 46 Fed.Cl. 571, 582 (2000)" }, { "docid": "7183478", "title": "", "text": "Standards of Review 1. Cross-motions for Summary Judgment In deciding cross-motions for summary judgment upon the administrative record pursuant to Rule 56.1 of the Rules of the Court of Federal Claims (“RCFC”), this court treats the motions the same as a motion for summary judgment under RCFC 56. Chas H. Tompkins Co. v. United States, 43 Fed.Cl. 716, 719 (1999) (citing Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255 (Fed.Cir.1997)). Summary judgment is properly granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). The moving party bears the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)). A fact is material if it may affect the outcome of the suit under the substantive law governing the action. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. All doubt over factual issues must be resolved in favor of the party opposing summary judgment. Mingus, 812 F.2d at 1390. However, the non-moving party has the burden of producing sufficient evidence that there is a genuine issue of material fact in dispute which would allow a reasonable finder of fact to rule in its favor. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Such evidence need not be admissible at trial; nevertheless, mere denials, conclusory statements or evidence that is merely colorable or not significantly probative is not sufficient to preclude summary judgment. Celotex, 477 U.S. at 324, 106 S.Ct. at 2548; Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2505; and Mingus, 812 F.2d at 1390-91. When the court is presented with cross-motions for summary judgment, each motion must be evaluated on its own merits," }, { "docid": "10484401", "title": "", "text": "of review is the same for bid protest claims and claims of breach of implied-in-fact contract, and (2) plaintiffs requested relief, bid preparation and proposal costs, is available under both theories. Accordingly, it is not necessary to address the merits of plaintiffs claim of breach of implied-in-fact contract because that analysis would duplicate the court’s determinations made with regard to plaintiffs motion for judgment on the administrative record. II. Judgment on the Administrative Record The court decides this case on cross-motions for judgment on the administrative record. Motions for judgment on the administrative record are reviewed under the same standards as motions for summary judgment. See RCFC 56.1. Consequently, judgment on such motions is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is considered material if it might significantly affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505. In deciding a motion for judgment on the record, the role of the court is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. The fact that both parties have moved for summary judgment does not relieve the court of its responsibility to determine the appropriateness of summary disposition. See Prineville Sawmill Co., Inc. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987)); see also Compubahn, Inc. v. United States, 33 Fed.Cl. 677, 680 (1995). Summary judgment will not necessarily be granted to one party or another simply because each has moved for summary judgment. See Cornan v. United States, 26 Cl.Ct. 1011, 1014 (1992) (citing LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401 F.2d 689, 692-693 (4th Cir.1968)). A cross-motion is a party’s claim that it alone is entitled to summary judgment. See Cornan v. United States, 26 Cl.Ct." }, { "docid": "15424533", "title": "", "text": "report; and ordered that Exhibits 3-9 and 13 of Plaintiffs motion for a temporary restraining order and the Moore affidavit attached to Plaintiffs motion for permanent injunction be stricken from the record. Lastly, on December 4, 2000, the Court held oral argument on the parties’ cross-motions for judgment upon the administrative record. III. Standards of Review A. Cross-motions for Judgment upon the Administrative Record Pursuant to Rule 56.1 of the Rules of the Court of Federal Claims (RCFC), the parties move for cross-motions for judgment upon the administrative record. This Court treats such motions the same as a motion for summary judgment under RCFC 56. See Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255 (Fed.Cir.1997). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Jay v. Secretary, DHHS, 998 F.2d 979 (Fed. Cir.1993). A fact is material if it might significantly affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. 242, 106 S.Ct. at 2510. The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). The court must resolve any doubts about factual issues in favor of the non-moving party, Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307 (Fed.Cir.1998) and draw all reasonable inferences in its favor. See Gasser Chair Co. v. Infanti Chair Mfg. Corp., 60 F.3d 770, 773 (Fed.Cir.1995). The fact that both parties have moved for summary judgment is not an admission that no material facts remain in issue. Massey v. Del Laboratories, Inc., 118 F.3d 1568, 1573 (Fed.Cir.1997); see also Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed. Cir.1988). Summary judgment will not necessarily be granted to one party or another simply" }, { "docid": "15424932", "title": "", "text": "should be addressed through a summary judgment proceeding. Transcript of October 13, 2000 Status Conference (Conf. Tr.) at 5,18. Summary judgment is warranted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rules of the United States Court of Federal Claims (RCFC) 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact that might significantly affect the outcome of the litigation is material. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When the case is before the court on cross-motions for summary judgment, each motion is evaluated under the same standard. Cubic Defense Sys., Inc. v. United States, 45 Fed. Cl. 450, 457 (1999). Intervenor has filed a motion for judgment on the administrative record, which is governed by the same rules as a motion for summary judgment. RCFC 56 .1(a); see Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255, 1997 WL 177509 (Fed.Cir.1997). The question on a motion for judgment on the administrative record is “whether the record substantiates a preponderance of evidence to uphold the procurement decision.” Ellsworth Assocs., Inc. v. United States, 45 Fed. Cl. 388, 393 (1999). It is appropriate to assess a procurement through summary judgment motions and motions for judgment on the administrative record “because the issues are matters of contractual and regulatory interpretation.” Analytical & Research Tech., Inc. v. United States, 39 Fed.Cl. 34, 43 (1997). Because plaintiff must show that it is likely to prevail on the merits to be granted injunctive relief, see DSD Laboratories, Inc. v. United States, 46 Fed.Cl. 467, 480 (2000), the court addresses the merits of the case first. B. Standard of Review The court reviews defendant’s source selection decision under the standard set out in the Administrative Procedure Act (APA), 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). The APA directs a reviewing court to overturn agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or, alternatively, “in excess of statutory" }, { "docid": "5278234", "title": "", "text": "the so-called Scan-well doctrine, see Scanwell Labs. Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970). See CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1573 (Fed.Cir.1983) (citing S.Rep. No. 275, 97th Cong., 2d Sess. 23 (1981), reprinted in 1982 U.S.C.C.A.N. 11, 33; H.R.Rep. No. 312, 97th Cong., 1st Sess. 43 (1981)); see also Banknote, 365 F.3d at 1350; Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1079 (Fed.Cir.2001). The Scanwell line of cases did not require proof by clear and convincing evidence. Third, application of the heightened standard to bid protests would be illogical because a protestor need demonstrate only a probability of success on the merits to obtain temporary and preliminary injunctive relief. 2. The role of the administrative record Under RCFC 56.1, motions for judgment on the administrative record are reviewed under the same standards as motions for summary judgment. See Banknote, 365 F.3d at 1352-53. Summary judgment is proper when no genuine issues of material fact are in dispute and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A motion for summary judgment on the administrative record nonetheless differs from a motion for summary judgment. Although the administrative record contains facts that the parties deem both disputed and material, the court can resolve the case on the administrative record if, given the deferential standard of review, the protester fails to prove either (or both) that a decision is not rational or that a violation of a regulation occurred. In the rare ease where the court cannot make the determination on the record, an evidentiary hearing is required. The question of the scope of review has practical consequences. The court must cosset those factual issues appropriate for resolution through an evidentiary hearing or by trial. RCFC 56.1 was adopted to address the morass that review of the records presented by military back pay cases. While the prospect of a trial was not contemplated, the tools of statement and counterstatement of facts served to identify exactly" }, { "docid": "10017359", "title": "", "text": "adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases where relief is at issue, especially at the preliminary injunction stage. Cubic Applications, Inc. v. United States, 37 Fed.Cl. 339, 342 (1997) (quoting Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989)). Here, the court permitted the parties to cite to extra-record evidence, specifically, the testimony at the hearing on the plaintiffs motion for temporary injunctive relief. See Transcript of February 24, 1999, hearing at 92-93. In arguing the instant motions for judgment on the administrative record, the parties have referred to that extra-record evidence, particularly to the hearing testimony of the Source Selection Authority, General Haines. We decide this case on cross-motions for summary judgment on the administrative record by ITT, the government, and Northrop Grumman. Motions for judgment upon the administrative record are treated in accordance with the rules governing motions for summary judgment. RCFC 56.1; see Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255 (Fed.Cir.1997). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Jay v. Secretary of Dept. of Health and Human Services, 998 F.2d 979, 982 (Fed.Cir.1993). A fact is material if it might significantly affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The party moving for summary judgment bears the initial burden" } ]

[ { "docid": "6731474", "title": "", "text": "the Court, by order dated February 17, 1998, has certified as the class in this case. The class consists of individuals receiving Medicaid benefits who resided in private ICF/DDs as of June 30, 1997, and who currently reside in private ICF/DDs. Counsel for the Smith plaintiffs are counsel for the class. Counsel for Cramer may continue to participate in the case on behalf of the Cramer plaintiff or any other members of the class who are opposed to a remedy which might eliminate ICF/DD services in violation of a beneficiary’s statutory right to choose. DEFENDANTS LAWTON CHILES, Governor of the State of Florida, has been sued in his official capacity. His office is responsible for ensuring that the agencies of the State’s Executive Branch, including the Department for Children and Families (DCF) and the Agency for Health Care Administration (AHCA), act in compliance with the Constitution and the laws of the United States. EDWARD FEAVER, as Secretary' of DCF, is responsible for the administration of human services including the Developmental Services Program and its related Medicaid Program in Florida. He is sued in his official capacity. CHARLES KIMBER, an Assistant Secretary for DCF, is responsible for the control and administration of human services, including the Developmental Services Program and its related Medicaid Program in Florida. He is sued in his official capacity. DONNA ALLEN, Chief of District Supports for Developmental Services, DCF, is responsible for control and administration of the Developmental Services Program and its related Medicaid Program in Florida. She is sued in her official capacity. DOUG COOK, as the Director of the Agency for Health Care Administration (AHCA), is sued in his official capacity. He is responsible for administering the Florida Medicaid Program so that it complies with the Medicaid Act and other laws of the United States. RICHARD LUTZ, the Director of the AHCA Division of Medicaid, is sued in his official capacity. He is responsible for Florida Medicaid operations and its compliance with the Medicaid Act and other federal laws. THE FEDERAL STATUTORY AND CONSTITUTIONAL FRAMEWORK, AND THE ICF/DD PROGRAM Medicaid (Generally) The Medicaid program, established" } ]

[ { "docid": "11282375", "title": "", "text": "FDA approved indications or multiple, randomized, well controlled, clinical trials that demonstrate new, safe and effective uses for a medication. Id. at 2. Plaintiffs Each of the named Plaintiffs is a Medicaid recipient whose doctor prescribed Neu-rontin for one of the off-label uses listed in DRUGDEX that is no longer covered by AHCA, and whose request for reimbursement was therefore denied by AHCA. By separate Order issued today, the Court has certified a class of Florida Medicaid recipients whose doctors also prescribed Neurontin for one of the off-label uses that is no longer covered by AHCA, and whose requests for coverage have been or will be denied by AHCA. None of the Medicaid recipients whose requests were denied have been successful in obtaining a reversal of the decision to deny coverage. AHCA has agreed to continue to cover Neurontin for persons whose reimbursement requests were denied, upon notice to the agency, until this dispute is resolved. Drug Compendia Some background information on the drug compendia is useful here. Of the three drug compendia listed in § 1396r-8(g)(1)(B)(i), DRUGDEX and AHFS are the most up-to-date and the parties have focused their attention on them. None of the compendia has a section entitled “Uses Supported by Citation” (i.e., tracking the language of the statute), and each is arranged differently. In AHFS, medically accepted indications are listed in a section entitled “Uses.” See Plfs.’ Not. of Filing Exs. in Supp. of Mot. Summ. J. (“Plfs.’ SJ Not.”) (D.E. No. 95), Ex. 4. AHFS lists the two FDA-approved uses as well as several off-label uses for Neurontin. AHFS discusses the effectiveness of Neurontin for the listed uses but does not mention documentation nor refer to the literature that the AHFS editors reviewed in preparing the compendium. DRUGDEX is more complex. The following sections in the DRUGDEX chapter on Neurontin are relevant in this lawsuit. Section 4.5, entitled “Therapeutic Uses,” lists 54 uses for Neurontin including both the two FDA-approved and 52 off-label uses. For each of the 54 uses, DRUG-DEX includes an overview which reflects whether the FDA has approved Neurontin for that particular" }, { "docid": "11282384", "title": "", "text": "no room for the exercise of discretion on the part of the state agency to determine its own criteria for defining whether and how a use is supported by citation. The statute as written eliminates such discretion and results in a single, nationally uniform list of medically accepted indications. AHCA counters that it is statutorily empowered by the Medicaid Act to review the citations in the compendia and to establish its own criteria to assess whether a reported use for a drug is supported by citations and is, therefore, a “medically accepted indication” subject to reimbursement. AHCA argues that the phrase “the use of which is supported by one or more citations included or approved for inclusion in any of the compendia” refers not to citations merely mentioned in passing in the compendia, but to citations which are set forth in the compendia and which are supported by double-blind, placebo-controlled, randomized clinical studies. AHCA notes that this is the standard employed by the FDA and ensures the most unbiased result, that the result can be replicated, and demonstrates that the drug is safe and effective for the listed use. AHCA claims that Plaintiffs erroneously equate the 54 reported therapeutic uses for Neurontin in DRUGDEX with the term “citations” in § 1396r-8(k)(6). It is AHCA’s position that “citation” means something more than mere inclusion in the compendia; it means the authoritative sources that substantiate the listing of therapeutic uses in the various compendia, and that it is entitled to employ its own criteria for making such a determination. Thus, AHCA refuses to cover the off-label citations in DRUGDEX that do not meet the stated standard, because they do not meet the criteria established by the state to mandate coverage. 1. Merits of the Case To obtain the permanent injunction they seek, Plaintiffs first must demonstrate as a matter of law that Defendant is violating the federal Medicaid Act. For the reasons discussed below, the Court concludes that Plaintiffs are entitled to summary judgment. The Court finds that Plaintiffs’ interpretation of the term “medically accepted indication” is reasonable, AHCA’s is not, and," }, { "docid": "11282402", "title": "", "text": "law. 2. Adequate Remedy of Law In addition to prevailing on the merits of the case, a party seeking a permanent injunction must also demonstrate there is no adequate remedy at law for the violation of the right asserted in the complaint. Alabama, 424 F.3d at 1128. Plaintiffs in this case are not seeking monetary damages but rather, prospective injunctive relief. They are asking this Court to enjoin Defendant, as head of the state Medicaid agency, from continuing to implement a policy which they say (and which this Court has found) violates the federal Medicaid Act. They seek to force Defendant to adopt a written policy which complies with the Medicaid Act and ensures coverage of Neurontin for those uses recognized in the Medicaid law, and to take appropriate action to ensure that affected individuals are notified of the change in policy and advised that previously-denied prescriptions for Neurontin can be re-submitted for reimbursement to AHCA. In such a case, the only relief available is injunctive relief. Plaintiffs have met their burden under this prong of the permanent injunction standard. 3. Irreparable Harm To obtain the injunction, Plaintiffs also must show that' irreparable harm will result if the Court does not order injunc-tive relief. Id. The Court must determine whether Plaintiffs will suffer irreparable harm if AHCA’s Neurontin policy is permitted to remain in effect. Plaintiffs are low-income residents of Florida who cannot pay for their own health care. Their poverty qualifies them for participation in the Florida Medicaid program, which guarantees them prompt access to essential medical services. Plaintiffs’ treating physicians have concluded, after assessing their patient’s conditions and medical histories, including other drugs prescribed and reactions thereto, that Neurontin is medically necessary and indicated for the treatment of Plaintiffs’ conditions. Plaintiffs claim that as a result of Defendant’s refusal to cover Neurontin for their conditions (because they are not among the four that AHCA has approved for coverage), they and other Medicaid recipients like them are being denied essential medical treatment, and that the resultant harm is imminent and irreparable. AHCA counters that Plaintiffs have failed to show" }, { "docid": "11282405", "title": "", "text": "who sued to enjoin state agency from including as “countable income,” for purposes of determining eligibility for Medicaid benefits, veteran’s pension funds would suffer irreparable injury unless an injunction issued since many would otherwise be deprived of essential medical care); Dodson v. Parham, 427 F.Supp. 97, 108 (N.D.Ga.1977) (finding irreparable harm where state’s proposed restriction of covered drugs might cut off Medicaid recipients from indicated prescription drugs overnight, over a weekend, or indefinitely pending review by the state’s drug utilization review board); Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir.1982) (finding irreparable harm where enforcement of the state rule for determining eligibility for Medicaid benefits “may deny [plaintiffs] needed medical care”); Newton-Nations v. Rogers, 316 F.Supp.2d 883, 888 (D.Ariz.2004) (finding irreparable harm where plaintiff Medicaid recipients could be denied medical care as a result of their inability to pay increased co-payment to medical service providers; citing Beltran); Doe v. Perales, 782 F.Supp. 201, 204-205 (W.D.N.Y.1991) (concluding that reduction in Medicaid benefits for nursing home residents constituted irreparable harm to support preliminary injunction); Benjamin H. v. Ohl, No. 3:99-0338, 1999 U.S. Dist. LEXIS 22469, at *36-*37 (S.D.W.V. July 15, 1999) (irreparable harm established where plaintiffs were not receiving therapy, habilitation services, respite care, and other benefits to which they were entitled under Medicaid, and lack of services was causing some plaintiffs to lose skills previously acquired and was creating unnecessary stress on plaintiffs, fámilies and care givers); Mass. Ass’n of Older Americans v. Sharp, 700 F.2d 749, 753 (1st Cir.1983) (“Termination of benefits that causes individuals to forgo such necessary medical care is clearly irreparable injury.”). The Court concludes that Plaintiffs are suffering, and will continue to suffer, imminent and irreparable harm as a result of AHCA’s continued implementation of its Neurontin policy and its continuing denial of Medicaid benefits to Plaintiffs. 4. Balance of Hardships and Public Interest The Court finds, and Defendant has not claimed otherwise, that the harm to Plaintiffs of being deprived of essential medical services outweighs any harm to the state, and further, that the public interest would be advanced by AHCA’s compliance with the" }, { "docid": "11282370", "title": "", "text": "for non-formulary drugs. As noted earlier, the other methods by which a state may restrict coverage of Medicaid-eligible drugs deserve brief mention. The Medicaid Act permits a state to exclude or otherwise restrict coverage for drugs that are listed in § 1396r-8(d)(2). § 1396r-8(d)(1)(B)(ii). Subparagraph (d)(2) is a list of drugs or classes of drugs that Congress has determined may be excluded from coverage or otherwise restricted. The Secretary of HHS must by regulation periodically update this list of drugs or their medical uses “which the Secretary has determined, based on data collected by surveillance and utilization review programs of State medical assistance programs, to be subject to clinical abuse or inappropriate use.” § 1396r — 8(d)(3). Through a drug utilization review program, a state may advise the Secretary of drugs that are subject to gross overuse or inappropriate or medically unnecessary care. Until the Secretary amends the list of excluded drugs to include a particular drug, however, the state may not exclude that drug from coverage except through its formulary committee based solely on clinical factors. The other method of exclusion, where an agreement between the drug’s manufacturer and the state to restrict coverage exists, is not applicable. The statutory scheme is carefully constructed in such a way to precisely circum scribe the only methods by which a state may remove a Medicaid-eligible drug from coverage and prevent it from either arbitrarily removing a drug or adopting its own ad hoc procedure for removing a drug from coverage. Legislative and Agency Actions In the spring of 2004, following news reports that Neurontin was being widely prescribed for off-label uses and that reimbursement for the drug by state Medicaid programs was significant, the Florida Legislature passed legislation authorizing AHCA, at its discretion, to require prior authorization for the off-label uses of Medicaid-covered prescribed drugs, including Neurontin. Specifically, the legislation provided that AHCA may require prior authorization for the off-label use of Medicaid-covered prescribed drugs as specified in the General Appropriations Act. [AHCA] may, but is not required to, preauthorize the use of a product for an indication not in the" }, { "docid": "11282407", "title": "", "text": "outpatient prescription drug coverage requirements of the Medicaid Act. See, e.g., Mitson, 670 F.Supp. at 1577 (“the public interest will not only not be harmed by the issuance of this injunction, but will be substantially benefitted in that seriously ill, aged veterans will receive essential medical care that could not otherwise be provided”) (emphasis in original). Issuance of an injunction to enforce the federal Medicaid Act is without question in the public interest, and the Court finds that Plaintiffs have satisfied all prongs of the injunction standard. Conclusion The Court finds that Plaintiffs are entitled to judgment as a matter of law in this case. The Court further finds that a permanent injunction as discussed herein is appropriate because Defendant is violating the federal Medicaid Act through implementation of its Neurontin policy, Plaintiffs do not have an adequate legal remedy and they are suffering and will continue to suffer irreparable harm if the policy remains in effect, the threat of injury to Plaintiffs outweighs any harm to Defendant, and the issuance of the permanent injunction is in the public interest. It is hereby ORDERED AND ADJUDGED that 1) Plaintiffs’ Motion for Summary Judgment (D.E. No. 92) is GRANTED. 2) The Court enters the following PERMANENT INJUNCTION: Defendant Alan Levine, acting in his official capacity as Secretary of the Florida Agency for Health Care Administration, shall (a) refrain from continuing to implement the policy announced in “Medicaid Changes Effective July 1st, 2004, Neuron-tin Label Indications and Dosing;” (b) adopt a written policy that ensures that a prescription for the covered outpatient drug Neurontin/Gabapentin will be reimbursed by Defendant if the drug use is cited in either the drug labeling or in at least one of the drug compendia cited at 42 U.S.C. § 1396r-8(g)(l)(B)(i); (c) publish notice to all physicians and pharmacists that their patients can resubmit a prescription for Neurontin/Gabapen-tin, along with an amended prior authorization form; and (d)provide written notice to members of the class whose prescriptions were denied since July 2004 that they can submit new prescriptions and prior authorization requests. 3) Plaintiffs’ Amended Motion for Preliminary Injunction" }, { "docid": "11282386", "title": "", "text": "therefore, AHCA’s determination that most of the off-label uses cited in DRUGDEX are not “medically accepted indications” because they are not substantiated by double-blind, placebo-controlled, randomized clinical trials is erroneous. Once this conclusion is reached, it is clear that Defendant’s application of its Neuron-tin policy which stems from this erroneous interpretation violates federal law. The Court finds that AHCA has misconstrued the term “medically accepted indication,” and in so doing, is using the state’s prior authorization program to deny reimbursement for a covered outpatient drug, something not permitted by the Medicaid Act. While AHCA may condition drug coverage for medically accepted indications upon certain prior authorization procedures being followed, see §§ 1396r-8(d)(1)(A), (d)(5), the agency may not exclude coverage, i.e., deny reimbursement, for a covered drug under these subsections pursuant to the type of prior authorization program established by the state. To do so clearly violates the federal act. Although AHCA has every right, and indeed an obligation, to ensure that it is not covering drugs that are subject to clinical abuse or misuse, it must act within the confines of the Medicaid law. The state must follow the procedures for excluding Medicaid-eligible drugs like Neurontin that are set out § 1396r-8(d). Through a properly-constituted formulary committee, the state may establish a drug formulary and then, for clinical reasons, exclude Neu-rontin for certain off-label uses from the formulary. Alternatively, through its annual drug utilization review report, the state may advise the Secretary of HHS that Neurontin is subject to clinical abuse or inappropriate use. However, until the HHS Secretary amends the HHS regulation to add Neurontin or specified uses thereof to the list of excluded drugs, the state may not stop covering the drug for most uses based simply on its own determination that the drug is being abused or misused. Finally, the only other way the state can deny reimbursement for off-label uses of Neurontin is by concluding that the drug is being prescribed for non-“medically accepted indications,” which is what AHCA has done. But for the reasons discussed below, the Court rejects this conclusion. Applying well-established rules of" }, { "docid": "11282372", "title": "", "text": "approved labeling. Prior authorization may require the prescribing professional to provide information about the rationale and supporting medical evidence for the off-label use of a drug. Fla. Stat. § 409.912(39)(a) 14. (2004). Through the General Appropriations Act, the Legislature reduced the funds available for prescription drug reimbursements for Florida Medicaid recipients, including the money available for Neurontin: Funds in Specific Appropriations 216 reflect a reduction of $2,930,841 from the General Revenue Fund and $4,200,159 from the Medical Care Trust Fund as a result of implementing a prior authorization program for the off-label use of Neurontin. See Plfs.’ Not., Ex. 7 at 2. AHCA responded to this legislation by changing its policy on Neurontin reimbursements for Medicaid recipients, effective July 1, 2004. Prior to July 1, 2004, AHCA reimbursed all Neurontin prescriptions. Under the new policy, AHCA decided to cover Neurontin for the two FDA-approved uses, and for off-label uses only when the uses for which the drug was prescribed were ■ substantiated as being safe and effective by double-blind, placebo-controlled, randomized clinical trials. For those uses which are listed in the drug compendia but which AHCA has found are not supported by the criteria decided upon it as being sufficiently sound, AHCA denies coverage. Thus, in accordance with this new policy, AHCA only covers Neu-rontin when it is prescribed for one of the following four uses: (a) the two FDA-approved uses for this drug (adjunctive therapy in treating partial seizures, including partial seizure refractory, and posth-erpatic neuralgia in adults), and (b) the two off-label uses which Defendant has determined merit coverage (ALS and diabetic peripheral neuropathy). The new Neurontin policy was summarized in a document entitled “Medicaid Changes Effective July 1st, 2004, Neurontin Label Indications and Dosing.” Id., Ex. 5 at 5-4. See also id. at 5-1 (“Florida Medicaid, Effective July 1, 2004”); id. at 5-2 (“Florida Medicaid, Neurontin Off Label and Dosing Issues”). In addition, AHCA published a new Pri- or Authorization form for Neurontin which allows a provider to request pre-authorization for a Neurontin prescription by completing the form and indicating that the drug is being prescribed for" }, { "docid": "11282356", "title": "", "text": "Dosing,” took effect on July 1, 2004 (the “Neurontin policy”). See Plfs.’ Not. of Filing Exs. (“Plfs.’ Not.”) (D.E. No. 9), Ex. 5-4. Plaintiffs suffer from neuropathic pain resulting from conditions other than the four identified above. Plaintiffs and their treating physicians or psychiatrists claim that Neurontin is one of the first-line medications for neuropathic pain, is a relatively safe and inexpensive drug widely used to treat nerve-related pain and some psychiatric disorders, and is medically necessary for the treatment of their conditions. Pri- or to July 1, 2004, Plaintiffs’ prescriptions for Neurontin were covered under Medicaid by AHCA. Since July 1, 2004, however, their requests for Neurontin coverage have been, and will continue to be, denied as a result of AHCA’s new policy, if the drug is not being prescribed for one of the four approved uses cited above. Plaintiffs claim that AHCA’s Neurontin policy violates the federal Medicaid Act because it fails to provide them with coverage of prescriptions for Neurontin for medically accepted indications as required by the Medicaid Act. Plaintiffs seek a permanent injunction directing Defendant Alan Levine, in his official capacity as Secretary of AHCA (“Defendant”), to: (1) refrain from continuing to implement the policy announced in “Medicaid Changes Effective July 1st, 2004, Neurontin Label Indications and Dosing;” (2) adopt a written policy that ensures that a prescription for the covered outpatient drug Neurontin/Gabapentin will be reimbursed by Defendant if the drug use is cited in either the drug labeling or in at least one of the drug compendia cited at 42 U.S.C. § 1396r-8(g)(l)(B)(i); (3) publish notice to all physicians and pharmacists that their patients can resubmit á prescription for Neurontin/Gabapentin, along with an amended prior authorization form; and (4) provide written notice to members of the class whose prescriptions were denied since July 2004 that they can submit new prescriptions and prior authorization requests. Statutory Framework The Medicaid program is a cooperative federal-state program designed to assist states with the cost of providing health care to the poor. See 42 U.S.C. §§ 1396— 1396v; see also Wilder v. Va. Hosp. Ass’n, 496 U.S." }, { "docid": "11282373", "title": "", "text": "uses which are listed in the drug compendia but which AHCA has found are not supported by the criteria decided upon it as being sufficiently sound, AHCA denies coverage. Thus, in accordance with this new policy, AHCA only covers Neu-rontin when it is prescribed for one of the following four uses: (a) the two FDA-approved uses for this drug (adjunctive therapy in treating partial seizures, including partial seizure refractory, and posth-erpatic neuralgia in adults), and (b) the two off-label uses which Defendant has determined merit coverage (ALS and diabetic peripheral neuropathy). The new Neurontin policy was summarized in a document entitled “Medicaid Changes Effective July 1st, 2004, Neurontin Label Indications and Dosing.” Id., Ex. 5 at 5-4. See also id. at 5-1 (“Florida Medicaid, Effective July 1, 2004”); id. at 5-2 (“Florida Medicaid, Neurontin Off Label and Dosing Issues”). In addition, AHCA published a new Pri- or Authorization form for Neurontin which allows a provider to request pre-authorization for a Neurontin prescription by completing the form and indicating that the drug is being prescribed for one of the four approved uses mentioned above. Id. at 5-5 (“Florida Medicaid, Prior Authorization, Neurontin”). Under the new Neu-rontin policy, if a provider submits a Prior Authorization form and indicates that Neu-rontin is being prescribed for something other than one of the four approved conditions, AHCA denies reimbursement. On March 18, 2005, AHCA published a proposed rule in which it incorporated by reference its revised Florida Medicaid Prescribed Drug Services, Coverage, Limitations and Reimbursement Handbook, December 2004. Id., Ex. 8 at 1 (Fla. Admin. Weekly Vol. 31, No. 11 (March 18, 2005) at 1073 (setting forth proposed Fla. Admin. Code R. 59G-4.250)). The revised Handbook, which purports to reflect recent legislative changes, contains a section under “Service Limitations” entitled “Approval Criteria” which advises Medicaid providers that approval criteria for each drug is based upon FDA approved indications, precautions and warnings. When there is. evidence-based use for a medication that includes controlled, comparative clinical trials, [AHCA] may choose to add this use to the approved indications. These criteria are subject to change based upon new" }, { "docid": "11282406", "title": "", "text": "v. Ohl, No. 3:99-0338, 1999 U.S. Dist. LEXIS 22469, at *36-*37 (S.D.W.V. July 15, 1999) (irreparable harm established where plaintiffs were not receiving therapy, habilitation services, respite care, and other benefits to which they were entitled under Medicaid, and lack of services was causing some plaintiffs to lose skills previously acquired and was creating unnecessary stress on plaintiffs, fámilies and care givers); Mass. Ass’n of Older Americans v. Sharp, 700 F.2d 749, 753 (1st Cir.1983) (“Termination of benefits that causes individuals to forgo such necessary medical care is clearly irreparable injury.”). The Court concludes that Plaintiffs are suffering, and will continue to suffer, imminent and irreparable harm as a result of AHCA’s continued implementation of its Neurontin policy and its continuing denial of Medicaid benefits to Plaintiffs. 4. Balance of Hardships and Public Interest The Court finds, and Defendant has not claimed otherwise, that the harm to Plaintiffs of being deprived of essential medical services outweighs any harm to the state, and further, that the public interest would be advanced by AHCA’s compliance with the outpatient prescription drug coverage requirements of the Medicaid Act. See, e.g., Mitson, 670 F.Supp. at 1577 (“the public interest will not only not be harmed by the issuance of this injunction, but will be substantially benefitted in that seriously ill, aged veterans will receive essential medical care that could not otherwise be provided”) (emphasis in original). Issuance of an injunction to enforce the federal Medicaid Act is without question in the public interest, and the Court finds that Plaintiffs have satisfied all prongs of the injunction standard. Conclusion The Court finds that Plaintiffs are entitled to judgment as a matter of law in this case. The Court further finds that a permanent injunction as discussed herein is appropriate because Defendant is violating the federal Medicaid Act through implementation of its Neurontin policy, Plaintiffs do not have an adequate legal remedy and they are suffering and will continue to suffer irreparable harm if the policy remains in effect, the threat of injury to Plaintiffs outweighs any harm to Defendant, and the issuance of the permanent injunction" }, { "docid": "11282371", "title": "", "text": "clinical factors. The other method of exclusion, where an agreement between the drug’s manufacturer and the state to restrict coverage exists, is not applicable. The statutory scheme is carefully constructed in such a way to precisely circum scribe the only methods by which a state may remove a Medicaid-eligible drug from coverage and prevent it from either arbitrarily removing a drug or adopting its own ad hoc procedure for removing a drug from coverage. Legislative and Agency Actions In the spring of 2004, following news reports that Neurontin was being widely prescribed for off-label uses and that reimbursement for the drug by state Medicaid programs was significant, the Florida Legislature passed legislation authorizing AHCA, at its discretion, to require prior authorization for the off-label uses of Medicaid-covered prescribed drugs, including Neurontin. Specifically, the legislation provided that AHCA may require prior authorization for the off-label use of Medicaid-covered prescribed drugs as specified in the General Appropriations Act. [AHCA] may, but is not required to, preauthorize the use of a product for an indication not in the approved labeling. Prior authorization may require the prescribing professional to provide information about the rationale and supporting medical evidence for the off-label use of a drug. Fla. Stat. § 409.912(39)(a) 14. (2004). Through the General Appropriations Act, the Legislature reduced the funds available for prescription drug reimbursements for Florida Medicaid recipients, including the money available for Neurontin: Funds in Specific Appropriations 216 reflect a reduction of $2,930,841 from the General Revenue Fund and $4,200,159 from the Medical Care Trust Fund as a result of implementing a prior authorization program for the off-label use of Neurontin. See Plfs.’ Not., Ex. 7 at 2. AHCA responded to this legislation by changing its policy on Neurontin reimbursements for Medicaid recipients, effective July 1, 2004. Prior to July 1, 2004, AHCA reimbursed all Neurontin prescriptions. Under the new policy, AHCA decided to cover Neurontin for the two FDA-approved uses, and for off-label uses only when the uses for which the drug was prescribed were ■ substantiated as being safe and effective by double-blind, placebo-controlled, randomized clinical trials. For those" }, { "docid": "11282385", "title": "", "text": "replicated, and demonstrates that the drug is safe and effective for the listed use. AHCA claims that Plaintiffs erroneously equate the 54 reported therapeutic uses for Neurontin in DRUGDEX with the term “citations” in § 1396r-8(k)(6). It is AHCA’s position that “citation” means something more than mere inclusion in the compendia; it means the authoritative sources that substantiate the listing of therapeutic uses in the various compendia, and that it is entitled to employ its own criteria for making such a determination. Thus, AHCA refuses to cover the off-label citations in DRUGDEX that do not meet the stated standard, because they do not meet the criteria established by the state to mandate coverage. 1. Merits of the Case To obtain the permanent injunction they seek, Plaintiffs first must demonstrate as a matter of law that Defendant is violating the federal Medicaid Act. For the reasons discussed below, the Court concludes that Plaintiffs are entitled to summary judgment. The Court finds that Plaintiffs’ interpretation of the term “medically accepted indication” is reasonable, AHCA’s is not, and, therefore, AHCA’s determination that most of the off-label uses cited in DRUGDEX are not “medically accepted indications” because they are not substantiated by double-blind, placebo-controlled, randomized clinical trials is erroneous. Once this conclusion is reached, it is clear that Defendant’s application of its Neuron-tin policy which stems from this erroneous interpretation violates federal law. The Court finds that AHCA has misconstrued the term “medically accepted indication,” and in so doing, is using the state’s prior authorization program to deny reimbursement for a covered outpatient drug, something not permitted by the Medicaid Act. While AHCA may condition drug coverage for medically accepted indications upon certain prior authorization procedures being followed, see §§ 1396r-8(d)(1)(A), (d)(5), the agency may not exclude coverage, i.e., deny reimbursement, for a covered drug under these subsections pursuant to the type of prior authorization program established by the state. To do so clearly violates the federal act. Although AHCA has every right, and indeed an obligation, to ensure that it is not covering drugs that are subject to clinical abuse or misuse, it" }, { "docid": "11282355", "title": "", "text": "applying the Neurontin policy announced in “Medicaid Changes Effective July 1, 2004, Neurontin Label Indications and Dosing,” provide coverage for off-label uses of Neurontin which are cited in one of the congressionally-ap-proved compendia listed in 42 U.S.C. § 1396r-8(g)(l)(B)(i), as discussed herein; and take other steps necessary to ensure that notice of this change in policy is communicated to affected individuals. The Court DENIES AS MOOT Plaintiffs’ amended motion for preliminary injunction. BACKGROUND Present Dispute Plaintiffs Jack Edmonds, Susan Wesch-ke, and Gaylord Payne (collectively referred to herein as “Plaintiffs”) are Medicaid recipients who are challenging a policy of the Florida Agency for Health Care Administration (“AHCA”) to deny reimbursement under the federal Medicaid program for prescriptions for the drug Neurontin and/or its generic equivalent, Gabapentin (collectively referred to herein as “Neurontin”), except when prescribed for four indications or uses: adjunctive therapy for partial seizures (including partial seizure refractory); postherpetic neuralgia; diabetic neuropathy; and amyo-trophic lateral sclerosis (“ALS”). AHCA’s policy on Neurontin, which was announced in “Medicaid Changes Effective July 1st, 2004, Neurontin Label Indications and Dosing,” took effect on July 1, 2004 (the “Neurontin policy”). See Plfs.’ Not. of Filing Exs. (“Plfs.’ Not.”) (D.E. No. 9), Ex. 5-4. Plaintiffs suffer from neuropathic pain resulting from conditions other than the four identified above. Plaintiffs and their treating physicians or psychiatrists claim that Neurontin is one of the first-line medications for neuropathic pain, is a relatively safe and inexpensive drug widely used to treat nerve-related pain and some psychiatric disorders, and is medically necessary for the treatment of their conditions. Pri- or to July 1, 2004, Plaintiffs’ prescriptions for Neurontin were covered under Medicaid by AHCA. Since July 1, 2004, however, their requests for Neurontin coverage have been, and will continue to be, denied as a result of AHCA’s new policy, if the drug is not being prescribed for one of the four approved uses cited above. Plaintiffs claim that AHCA’s Neurontin policy violates the federal Medicaid Act because it fails to provide them with coverage of prescriptions for Neurontin for medically accepted indications as required by the Medicaid Act. Plaintiffs seek" }, { "docid": "11282404", "title": "", "text": "they would suffer irreparable harm if they are no longer able to take Neurontin. It is AHCA’s position that any harm is speculative and remote, because Neurontin has not been shown to have any curative effect on any of the indications for which AHCA is denying reimbursement, and in any event, there are alternative drugs covered by AHCA that have been proven to be safe and effective in treating the conditions from which Plaintiffs suffer. The Court has already concluded that AHCA’s Neurontin policy violates the Medicaid Act, and that AHCA is improperly denying reimbursement for Neurontin for numerous medically accepted indications. Consequently, AHCA is denying Medicaid benefits to which Plaintiffs are legally entitled. The denial of medical benefits, and resultant loss of essential medical services, constitutes an irreparable harm to these individuals. See, e.g., Cramer v. Chiles, 33 F.Supp.2d 1342, 1349 (S.D.Fla.1999) (reduction in funding for one Medicaid program, with simultaneous elimination of another program, placed plaintiffs at imminent risk of irreparable harm); Mitson v. Coler, 670 F.Supp. 1568, 1577 (S.D.Fla.1987) (nursing home plaintiffs who sued to enjoin state agency from including as “countable income,” for purposes of determining eligibility for Medicaid benefits, veteran’s pension funds would suffer irreparable injury unless an injunction issued since many would otherwise be deprived of essential medical care); Dodson v. Parham, 427 F.Supp. 97, 108 (N.D.Ga.1977) (finding irreparable harm where state’s proposed restriction of covered drugs might cut off Medicaid recipients from indicated prescription drugs overnight, over a weekend, or indefinitely pending review by the state’s drug utilization review board); Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir.1982) (finding irreparable harm where enforcement of the state rule for determining eligibility for Medicaid benefits “may deny [plaintiffs] needed medical care”); Newton-Nations v. Rogers, 316 F.Supp.2d 883, 888 (D.Ariz.2004) (finding irreparable harm where plaintiff Medicaid recipients could be denied medical care as a result of their inability to pay increased co-payment to medical service providers; citing Beltran); Doe v. Perales, 782 F.Supp. 201, 204-205 (W.D.N.Y.1991) (concluding that reduction in Medicaid benefits for nursing home residents constituted irreparable harm to support preliminary injunction); Benjamin H." }, { "docid": "11282400", "title": "", "text": "§ 1396r-8(k)(6). Plaintiffs acknowledge that the “Therapeutic Uses” section encompasses three uses that are rated as “ineffective,” but they point out that Defendant already covers two of those uses (partial seizures refractory and ALS). No other construction of the statute leads to a consistent reasonable result. Plaintiffs also point out that the Medicaid Act does not require a use listed in a compendium to be rated “effective.” The statute reads that a use must be “supported by one or more citations included ... in any of the compendia.” It says nothing about a use having been evaluated in terms of efficacy by the compendia’s editors. Plaintiffs argue that Defendant has “superimposed” an “effectiveness” criteria on the term “medically accepted indication;” doing so renders Congress’s reference to the other compendia, which do not include classifications of effectiveness, meaningless. AHCA claims that accepting Plaintiffs’ assertions that the mere fact that a drug has been cited in the compendia for a particular off-label use constitutes a “non- rebuttable” finding that the off-label use reported is a medically approved indication for use of the drug, and that Medicaid is required to reimburse for such off-label use, would be a dereliction of AHCA’s statutorily-imposed duties. This is not so. Ml AHCA need do is follow the statute, not attempt to establish its own ad hoc criteria for determining coverage, and not improperly use the prior authorization program to deny coverage. Then AHCA will have done its statutorily-imposed duty. The compendia citations do not create an irrebuttable presumption, because the state can always adopt a formulary or avail itself of the other methods for exclusion of a drug which have been adopted in the federal statutory scheme. Here, though, AHCA adopted its own ad hoc procedure for excluding Neurontin from coverage. By applying a more stringent test for drug coverage than the one set out by Congress, AHCA is effectively denying coverage for those drugs it is legally required to cover. For the foregoing reasons, the Court concludes that Plaintiffs have met their burden under Rule 56 and are entitled to judgment as a matter of" }, { "docid": "11282398", "title": "", "text": "interpretation of § 1396r-8(k)(6), then, is de novo. Id. at 1495; Turner, 869 F.2d at 141. It also bears note that AHCA, by excluding coverage pursuant to the prior authorization program, has gone beyond what the Florida Legislature authorized it to do. The Florida Legislature obviously recognized the limitations of the Medicaid Act in excluding drugs, and recognized the limitations of Florida’s prior authorization program. The law passed in 2004 permitted AHCA, at its discretion, to require prior authorization for the off-label use of Medicaid-covered prescribed drugs such as Neurontin. See Fla. Stat. § 409.912(39)(a) 13, (2005). Nothing in the law authorized AHCA to exclude certain uses from coverage, which it has improperly done through implementation of its new Neurontin policy. The Court finds that Plaintiffs’ interpretation of “supported by citation in the com-pendia” is reasonable, harmonizes the two phrases in the term “medically accepted indication,” and satisfies the intent of the Medicaid Act in establishing uniform criteria for drug coverage. Plaintiffs’ interpretation results in a uniform list of medically accepted indications that all states providing outpatient prescription drug coverage must utilize. Plaintiffs acknowledge it would be inappropriate to cover any drug listed for any use in any section of DRUGDEX, and argue instead that all the uses listed in the “Therapeutic Uses” section of DRUGDEX should be considered “medically accepted indications.” They argue that since the “Place in Therapy” section mentions only one of the two FDA-approved uses for Neurontin (for seizures), reference to this section alone would render both clauses of § 1396r-8(k)(6) (FDA-approved uses and uses which are supported by citation) meaningless. Plaintiffs suggest that relying on the “References” section alone would be nonsensical since it includes citations to uses for Neurontin that are not even listed in the “Therapeutic Uses” section. And they discount reliance on the “Comparative Efficacy” section because it simply compares Neurontin to other drugs for several therapeutic uses. Plaintiffs say, then, that the only possible construction of the statute vis-a-vis DRUGDEX is that the 54 off-label uses listed in the “Therapeutic Uses” section are “supported by citation” as defined in 42 U.S.C." }, { "docid": "11282403", "title": "", "text": "of the permanent injunction standard. 3. Irreparable Harm To obtain the injunction, Plaintiffs also must show that' irreparable harm will result if the Court does not order injunc-tive relief. Id. The Court must determine whether Plaintiffs will suffer irreparable harm if AHCA’s Neurontin policy is permitted to remain in effect. Plaintiffs are low-income residents of Florida who cannot pay for their own health care. Their poverty qualifies them for participation in the Florida Medicaid program, which guarantees them prompt access to essential medical services. Plaintiffs’ treating physicians have concluded, after assessing their patient’s conditions and medical histories, including other drugs prescribed and reactions thereto, that Neurontin is medically necessary and indicated for the treatment of Plaintiffs’ conditions. Plaintiffs claim that as a result of Defendant’s refusal to cover Neurontin for their conditions (because they are not among the four that AHCA has approved for coverage), they and other Medicaid recipients like them are being denied essential medical treatment, and that the resultant harm is imminent and irreparable. AHCA counters that Plaintiffs have failed to show they would suffer irreparable harm if they are no longer able to take Neurontin. It is AHCA’s position that any harm is speculative and remote, because Neurontin has not been shown to have any curative effect on any of the indications for which AHCA is denying reimbursement, and in any event, there are alternative drugs covered by AHCA that have been proven to be safe and effective in treating the conditions from which Plaintiffs suffer. The Court has already concluded that AHCA’s Neurontin policy violates the Medicaid Act, and that AHCA is improperly denying reimbursement for Neurontin for numerous medically accepted indications. Consequently, AHCA is denying Medicaid benefits to which Plaintiffs are legally entitled. The denial of medical benefits, and resultant loss of essential medical services, constitutes an irreparable harm to these individuals. See, e.g., Cramer v. Chiles, 33 F.Supp.2d 1342, 1349 (S.D.Fla.1999) (reduction in funding for one Medicaid program, with simultaneous elimination of another program, placed plaintiffs at imminent risk of irreparable harm); Mitson v. Coler, 670 F.Supp. 1568, 1577 (S.D.Fla.1987) (nursing home plaintiffs" }, { "docid": "11282401", "title": "", "text": "indication for use of the drug, and that Medicaid is required to reimburse for such off-label use, would be a dereliction of AHCA’s statutorily-imposed duties. This is not so. Ml AHCA need do is follow the statute, not attempt to establish its own ad hoc criteria for determining coverage, and not improperly use the prior authorization program to deny coverage. Then AHCA will have done its statutorily-imposed duty. The compendia citations do not create an irrebuttable presumption, because the state can always adopt a formulary or avail itself of the other methods for exclusion of a drug which have been adopted in the federal statutory scheme. Here, though, AHCA adopted its own ad hoc procedure for excluding Neurontin from coverage. By applying a more stringent test for drug coverage than the one set out by Congress, AHCA is effectively denying coverage for those drugs it is legally required to cover. For the foregoing reasons, the Court concludes that Plaintiffs have met their burden under Rule 56 and are entitled to judgment as a matter of law. 2. Adequate Remedy of Law In addition to prevailing on the merits of the case, a party seeking a permanent injunction must also demonstrate there is no adequate remedy at law for the violation of the right asserted in the complaint. Alabama, 424 F.3d at 1128. Plaintiffs in this case are not seeking monetary damages but rather, prospective injunctive relief. They are asking this Court to enjoin Defendant, as head of the state Medicaid agency, from continuing to implement a policy which they say (and which this Court has found) violates the federal Medicaid Act. They seek to force Defendant to adopt a written policy which complies with the Medicaid Act and ensures coverage of Neurontin for those uses recognized in the Medicaid law, and to take appropriate action to ensure that affected individuals are notified of the change in policy and advised that previously-denied prescriptions for Neurontin can be re-submitted for reimbursement to AHCA. In such a case, the only relief available is injunctive relief. Plaintiffs have met their burden under this prong" }, { "docid": "11282374", "title": "", "text": "one of the four approved uses mentioned above. Id. at 5-5 (“Florida Medicaid, Prior Authorization, Neurontin”). Under the new Neu-rontin policy, if a provider submits a Prior Authorization form and indicates that Neu-rontin is being prescribed for something other than one of the four approved conditions, AHCA denies reimbursement. On March 18, 2005, AHCA published a proposed rule in which it incorporated by reference its revised Florida Medicaid Prescribed Drug Services, Coverage, Limitations and Reimbursement Handbook, December 2004. Id., Ex. 8 at 1 (Fla. Admin. Weekly Vol. 31, No. 11 (March 18, 2005) at 1073 (setting forth proposed Fla. Admin. Code R. 59G-4.250)). The revised Handbook, which purports to reflect recent legislative changes, contains a section under “Service Limitations” entitled “Approval Criteria” which advises Medicaid providers that approval criteria for each drug is based upon FDA approved indications, precautions and warnings. When there is. evidence-based use for a medication that includes controlled, comparative clinical trials, [AHCA] may choose to add this use to the approved indications. These criteria are subject to change based upon new FDA approved indications or multiple, randomized, well controlled, clinical trials that demonstrate new, safe and effective uses for a medication. Id. at 2. Plaintiffs Each of the named Plaintiffs is a Medicaid recipient whose doctor prescribed Neu-rontin for one of the off-label uses listed in DRUGDEX that is no longer covered by AHCA, and whose request for reimbursement was therefore denied by AHCA. By separate Order issued today, the Court has certified a class of Florida Medicaid recipients whose doctors also prescribed Neurontin for one of the off-label uses that is no longer covered by AHCA, and whose requests for coverage have been or will be denied by AHCA. None of the Medicaid recipients whose requests were denied have been successful in obtaining a reversal of the decision to deny coverage. AHCA has agreed to continue to cover Neurontin for persons whose reimbursement requests were denied, upon notice to the agency, until this dispute is resolved. Drug Compendia Some background information on the drug compendia is useful here. Of the three drug compendia listed in" } ]

[ { "docid": "23248372", "title": "", "text": "RANDALL, Circuit Judge: Section 1920 of Title 28 allows the fees of witnesses to be taxed as costs in federal court, while section 1821 of the same title establishes the amount that may be so taxed. The case before us today asks whether — and if so, when — federal courts in non-diversity cases may tax as costs the fees of non-court-appointed expert witnesses in excess of the amount set forth in 28 U.S.C. § 1821. We hold that the fees of non-court-appointed expert witnesses are taxable only in the amount specified by § 1821, except that fees in excess of that amount may be taxed when expressly authorized by Congress, or when one of three narrow equitable exceptions to the American Rule applies. Our holding overrules those portions of Jones v. Diamond, 636 F.2d 1364 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); Copper Liquor Inc. v. Adolph Coors Co., 684 F.2d 1087 (5th Cir.1982) (Copper Liquor III), modified on other grounds en banc, 701 F.2d 542 (5th Cir.1983), and their progeny approving the taxing of excess expert witness’ fees as costs under standards different from that here announced. I. International Woodworkers of America, AFL-CIO, CLC (“IWA”) and one of its local unions sued Champion International Corporation (“Champion”) alleging racial discrimination in employment in violation of Title VII and 42 U.S.C. § 1981. After a trial, the district court entered judgment on the merits dismissing the claims of all plaintiffs and assessing costs against IWA. We affirmed the district court’s judgment on the merits. After denying Champion’s motion for attorneys’ fees, the district judge referred all other cost questions to a magistrate. The magistrate awarded Champion $14,750.87 in costs, of which $11,807.16 were for a portion of the services of an expert witness employed by Champion for the statistical aspects of the case. IWA objected to certain parts of the award, particularly to the taxing of the expert witness’ fees in an amount exceeding that provided for by § 1821, and the case returned to the district judge. The district judge" } ]

[ { "docid": "2803354", "title": "", "text": "not necessary. As we earlier explained, this suit was dormant for the first five years that it was pending. During that time this largely rural county constructed an entirely new facility designed to meet new state standards on jail conditions. Perhaps it is true, as the inmates suggest, that this suit was the brooding background which gave rise to the reform efforts of county officials, but it is also true that the new jail’s construction was completed without the whip of a federal decree. Indeed, to the extent that the record is clear on the efforts of the jail’s administrators to remedy the asserted violations, it indicates ready compliance rather than recalcitrance. Where, as here, the defendant makes dutiful progress to remedy the asserted problems, whether or not it is encouraged to do so by a suit, a federal court should exercise restraint. Any other course contradicts our system’s principles of shared power. In so holding, we do not tread on precedents that have upheld continued injunctive relief despite state defendants’ protests of compliance. The Supreme Court and this court, when affirming such injunctions, have uniformly pointed to evidence of noncompliance or foot-dragging in the record below. See Allee v. Medrano, 416 U.S. 802, 815, 94 S.Ct. 2191, 2200, 40 L.Ed.2d 566 (1974) (injunction proper upon showing of “persistent pattern of police misconduct”); Jones v. Diamond, 636 F.2d 1364, 1375 (5th Cir.) (en banc), cert. dism’d, 453 U.S. 920, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981) (defendants’ compliance came only after five years of “hotly contested” litigation, and only after oral argument of Fifth Circuit appeal; at time of trial, jail “still violated some constitutional requirements”); Gates v. Collier, 501 F.2d 1291, 1321 (5th Cir.1974) (continuing injunction proper where “protracted inhumane conditions and practices” had existed at penitentiary, “much [was] left to be done” to remedy those conditions, and federal monitor had been appointed based on inmates’ complaints that state was not complying with court’s orders). Such evidence of recalcitrance is absent from this record. That principles of federalism compel the conclusion that superintending injunctions such as those issued here" }, { "docid": "18575221", "title": "", "text": "of the SSU, thus leaving its role, if any, in that case unclear. In any event, neither the district court nor the Ninth Circuit appear to have considered the necessity of a hearing before the SSU. . According to IGI Briddle, this particular inmate had \"104 documents in [his] file saying that he's an EME member. He’s been validated as an EME associate for 15 years. We certainly believe that it's safe to come to the conclusion prior to interviewing the inmate, especially since we know he has EME tattoos on his body, that he is an EME member. And, therefore, in that circumstance, all the documentation was prepared prior to coming into my office.” . Plaintiffs also complain that prison officials do not affirmatively document in an inmate's file when there is an absence of new evidence of gang involvement over some period of time. However, given our ruling above, we are not convinced that this practice has constitutional significance. Moreover, this practice does not mean that prison officials are unaware that an inmate has remained “clean\" for some period. Since it is defendants' consistent practice to add any new evidence of gang activity or association to an inmate’s file, the lack thereof necessarily demonstrates that the inmate has a “clean\" record for this period. . Plaintiffs have also alleged that defendants have denied inmates the constitutional right of meaningful access to the courts set out in Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). We defer issuing a decision on this claim so that we can better consider recent Ninth Circuit case law on the subject, including Vandelft v. Moses, 31 F.3d 794 (9th Cir.1994), and Casey v. Lewis, 43 F.3d 1261 (9th Cir.1994). . We also note that defendants’ recent policy changes relating to the use of force do not moot plaintiffs’ request for injunctive relief. In cases involving constitutional violations in prisons, courts have held that \"[cjhanges made by defendants after a suit is filed do not remove the necessity for injunctive relief, for practices may be reinstated as" }, { "docid": "1758511", "title": "", "text": "whether there are individual claims against the defendants, Penfold and Dyer, personally, that will survive scrutiny under Rule 56 of the Federal Rules of Civil Procedure as that rule has most recently been interpreted by the Supreme Court of the United States. This involves an examination first of the law as it has evolved on that subject and then an examination of the factual record in this case in the light most favorable to the plaintiff. This court addressed the question of liability for a prison official for inter inmate violence in at least three published opinions. See Burr v. Duckworth, 547 F.Supp. 192 (N.D.Ind.1982), affirmed by unpublished order, 746 F.2d 1482 (7th Cir.1984); Massey v. Smith, 555 F.Supp. 743 (N.D.Ind.1983); and Risner v. Duckworth, 562 F.Supp. 378 (N.D.Ind.1983). The most recent relevant discussion of this subject by the Court of Appeals in this circuit is in Walsh v. Brewer, 733 F.2d 473 (7th Cir.1984) where Judge Bauer, speaking for the court at page 476, stated: Prison officials who show “deliberate indifference” to violent inmate attacks deprive inmates of their eighth amendment rights. Little v. Walker, 552 F.2d 193 (7th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978). Although this guarantee generally is implicated only when an inmate is assaulted, risks to an inmate’s safety alone may violate his rights when the threats are so constant that a virtual “reign of terror” exists. See Murphy v. United States, 653 F.2d 637 (D.C.Cir.1981); Jones v. Diamond, 636 F.2d 1364 (5th Cir.1981), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); Withers v. Levine, 615 F.2d 158 (4th Cir.1980), cert. denied, 449 U.S. 849, 101 S.CT. 136, 66 L.Ed.2d 59 (1980). Although Walsh does not rely specifically on these cases, he does claim that “Mellas and Martin had knowingly permitted an atmosphere of lawlessness and violence to prevail at Stateville.” Appellant’s br. at 19. The district court’s order does not discuss whether the evidence showed that the inmates at Stateville were exposed to an unconstitutionally high risk of harm, and thus we vacate and" }, { "docid": "2095341", "title": "", "text": "L.Ed.2d 251 (1976). The role of the federal courts is to enforce that constitutional standard without assuming superintendence of jail administration. Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir.1981) (en banc), cert. denied, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1982). This policy of minimum intrusion is particularly important when a state prison system is involved. Ruiz v. Estelle, 679 F.2d 1115, 1145 (5th Cir.1982); Williams v. Edwards, 547 F.2d 1206, 1212 (5th Cir.1977). Prison conditions can be so bad that it is cruel and unusual punishment to force inmates to endure them. Gates v. Collier, 501 F.2d 1291, 1301 (5th Cir.1974). In determining whether to uphold an eighth amendment challenge to prison conditions, the court must consider whether the totality of the circumstances violates “contemporary standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-50, 101 S.Ct. 2392, 2398-2400, 69 L.Ed.2d 59 (1981); Stewart v. Winter, 669 F.2d 328, 335-36 (5th Cir.1982); Jones v. Diamond, 636 F.2d at 1368; Cerrella v. Hanberry, 650 F.2d 606, 607 (5th Cir.1981), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1982). The individual judge must not apply his own subjective view of what is cruel and unusual. Rather, his judgment “should be informed by objective factors to the maximum possible extent.” Rhodes v. Chapman, 452 U.S. at 345, 101 S.Ct. at 2398; Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980); Ruiz v. Estelle, 679 F.2d at 1138. In general, the state has a responsibility to protect the safety of its prisoners. Streeter v. Hopper, 618 F.2d 1178, 1182 (5th Cir.1980); Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.1977). In operating a prison, however, the state is not constitutionally required to observe all the safety and health standards applicable to private industry. Ruiz, at 1159. Nor is it bound by the standards set by the safety codes of private organizations. Bell v. Wolfish, 441 U.S. 520, 543 n. 27, 99 S.Ct. 1861, 1876 n. 27, 60 L.Ed.2d 447 (1979). Standards suggested by experts are merely advisory. Bell, at 543 n." }, { "docid": "23616533", "title": "", "text": "Amendment duty he did not have. The court must, therefore, reconsider the issue of causation and determine whether Turner knowingly or recklessly disregarded any corrective measures. If he did, the court must then determine whether, taken as a whole, these measures would have eliminated the infirm conditions for which he was responsible. III. We now shift our focus from the retrospective analysis of the plaintiffs’ damages claims against Turner to the prospective relief sought by the class of present and future inmates of GCI. Three challenges to the court’s order granting injunctive relief merit discussion: (1) the conditions at GCI had improved, and, therefore, injunctive relief was no longer required, (2) Lambdin, GCI’s current superintendent, had not been deliberately indifferent to prisoner safety, and (3) the district court’s equitable grant unnecessarily intruded upon GCI’s management. A. First, Lambdin argues that because GCI reasonably protected inmates from violence at the time of trial, the court erred in granting injunctive relief. We disagree. Subsequent events, such as improvements in the allegedly infirm conditions of confinement, while potentially relevant, are not determinative. When a defendant corrects the alleged infirmity after suit has been filed, a court may nevertheless grant injunctive relief unless the defendant shows that absent an injunction, the institution would not return to its former, unconstitutionally deficient state. Jones, 636 F.2d at 1375; Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Comm’rs, 622 F.2d 807, 822 (5th Cir.1980) (finding that “the defendant [must] demonstrate that there is no reasonable expectation that the wrong will be re peated” (internal quotations omitted)), cert, denied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981). We have held that [jurisdiction may abate if there is no reasonable expectation the alleged violations will recur and if intervening events have completely and irrevocably eradicated the effects of the alleged violations. To defeat jurisdiction on this basis, however, defendants must offer more than their mere profession that the conduct has ceased and will not be revived. Hall v. Board of School Comm’rs, 656 F.2d 999, 1000-01 (5th Cir. Unit B 1981) (citations omitted). The burden" }, { "docid": "23616514", "title": "", "text": "plaintiffs do not argue that Turner knew of specific threats to their safety. Rather, they argue that Turner failed to ensure their protection from the general danger arising from a prison environment that both stimulated and condoned violence. This theory of liability creates substantial, but, as we shall see, not insurmountable obstacles to the plaintiffs’ claims. To prevail on their Eighth Amendment claim for damages brought under section 1983, the plaintiffs must prove three elements: (1) a condition of confinement that inflicted unnecessary pain or suffering, Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981), (2) the defendant’s “deliberate indifference” to that condition, Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991), and (3) causation, Williams v. Bennett, 689 F.2d 1370, 1389-90 (11th Cir.1982). For our purposes, the Eighth Amendment defines the contours of the first two elements and section 1983 delimits the third. 1. First, the condition must have inflicted unnecessary pain or suffering upon the prisoner. This objective standard “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency ...,’” but must be balanced against competing penological goals. Gamble, 429 U.S. at 102, 97 S.Ct. at 290 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)). The evidence presented at trial of an unjustified constant and unreasonable exposure to violence at GCI, as described in part I.B., clearly satisfies this standard. Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986); Williams, 689 F.2d at 1376; see Wilson, — U.S. at-, 111 S.Ct. at 2326-27; Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.) (“When prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners and the level of violence has become so high ... it constitutes cruel and unusual punishment-”), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), and overruled on other grounds by International Woodworkers of Am. v. Champion Intern. Corp., 790 F.2d 1174 (5th Cir.1986); Gates v. Collier, 501 F.2d 1291, 1308-10 (5th Cir. 1974). 2. Second, the plaintiffs must" }, { "docid": "22094742", "title": "", "text": "review. E.g., Casey v. Lewis, 43 F.3d 1261 (9th Cir.1994), cert. granted, — U.S. —, 115 S.Ct. 1997, 131 L.Ed.2d 999 (1995); Vandelft v. Moses, 31 F.3d 794 (9th Cir.1994); Gluth v. Kangas, 951 F.2d 1504 (9th Cir.1991); Johnson, 948 F.2d 517; Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987); Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851 (9th Cir.1985). Dilley has not alleged and our independent review has not revealed any reason why the general rule enunciated in Wiggins should not control. Second, Dilley has not demonstrated a reasonable expectation that he will be transferred back to Calipatria and subjected again to law library policies depriving him of meaningful access to the courts. When Dilley filed this lawsuit, he was classified as a Class IV inmate, which in California’s classification system represents the highest level of risk to prison security. Dilley was transferred from Calipatria to a lower-level security institution when he was reclassified as a Class III inmate. Calipatria does not house Class III inmates, and Dilley would be reclassified as a Class IV inmate only if he were to commit a serious violation of prison rules. Accordingly, Dilley’s claim that he might be transferred back to Calipatria some time in the future is “too speculative” to prevent mootness. See Wiggins, 760 F.2d at 1011; see also Reimers v. Oregon, 863 F.2d 630, 632 & n. 4 (9th Cir.1988) (plaintiff who had been released from prison had no reasonable expectation of return because such return would occur only if the plaintiff committed additional criminal acts). IV In addition to seeking dismissal of their own appeal, the defendants request that we vacate the district court’s order as moot. We remand for the district court to determine whether the injunction should be vacated. A The leading case on vacatur is United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950), where the United States argued that a district court opinion should not have been given res judi-cata effect when the" }, { "docid": "2803355", "title": "", "text": "Supreme Court and this court, when affirming such injunctions, have uniformly pointed to evidence of noncompliance or foot-dragging in the record below. See Allee v. Medrano, 416 U.S. 802, 815, 94 S.Ct. 2191, 2200, 40 L.Ed.2d 566 (1974) (injunction proper upon showing of “persistent pattern of police misconduct”); Jones v. Diamond, 636 F.2d 1364, 1375 (5th Cir.) (en banc), cert. dism’d, 453 U.S. 920, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981) (defendants’ compliance came only after five years of “hotly contested” litigation, and only after oral argument of Fifth Circuit appeal; at time of trial, jail “still violated some constitutional requirements”); Gates v. Collier, 501 F.2d 1291, 1321 (5th Cir.1974) (continuing injunction proper where “protracted inhumane conditions and practices” had existed at penitentiary, “much [was] left to be done” to remedy those conditions, and federal monitor had been appointed based on inmates’ complaints that state was not complying with court’s orders). Such evidence of recalcitrance is absent from this record. That principles of federalism compel the conclusion that superintending injunctions such as those issued here should be matters of the last order, not the first, is nothing new. We plow no new ground. The Supreme Court has recently told the Congress that it must state its intention in the statute itself if it is to exercise its power to abrogate Eleventh Amendment immunity; an intent to do so will not be inferred. Atascadero State Hospital v. Scanlon, — U.S. —, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). In other words, the judiciary has required that the Congress act in such a disciplined manner that intrusion into state affairs be its considered judgment and presumably a product of its felt necessity. It would be incongruous for the judiciary to not impose such discipline upon itself. V We turn next to the jail’s handling of the inmates’ mail. Our task is hampered by the absence of specific findings on the asserted deficiencies in the County’s program and by the opaque directive of the magistrate that: Within sixty days defendant shall devise written guidelines applicable to mail practices which are consistent with Guajardo" }, { "docid": "18575222", "title": "", "text": "has remained “clean\" for some period. Since it is defendants' consistent practice to add any new evidence of gang activity or association to an inmate’s file, the lack thereof necessarily demonstrates that the inmate has a “clean\" record for this period. . Plaintiffs have also alleged that defendants have denied inmates the constitutional right of meaningful access to the courts set out in Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). We defer issuing a decision on this claim so that we can better consider recent Ninth Circuit case law on the subject, including Vandelft v. Moses, 31 F.3d 794 (9th Cir.1994), and Casey v. Lewis, 43 F.3d 1261 (9th Cir.1994). . We also note that defendants’ recent policy changes relating to the use of force do not moot plaintiffs’ request for injunctive relief. In cases involving constitutional violations in prisons, courts have held that \"[cjhanges made by defendants after a suit is filed do not remove the necessity for injunctive relief, for practices may be reinstated as swiftly as they were suspended.” Jones v. Diamond, 636 F.2d 1364, 1375 (5th Cir.1981), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), and overruled on other grounds by Int’l Woodworkers of America v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir.1986); see also Gluth, 951 F.2d at 1507; Gates v. Collier, 501 F.2d 1291, 1321 (5th Cir.1974); Santiago v. Miles, 774 F.Supp. 775, 793-95 (W.D.N.Y.1991) (\"In cases involving challenges to prison practices, federal courts in this circuit have not been reluctant to issue injunctive relief in spite of substantial voluntary improvements by prison officials”); Fisher, 692 F.Supp. at 1565-66. Thus, the burden is on the defendants to prove \"that the wrongs of the past could not reasonably be expected to recur.” Jones, 636 F.2d at 1375; LaMarca, 995 F.2d at 1541-42 (reforms enacted after filing of action challenging prison conditions do not preclude injunctive relief unless defendants show that the institution \"would not return to its former, unconstitutionally deficient state\"); Santiago, 774 F.Supp. at 794. For the reasons discussed in this" }, { "docid": "23384254", "title": "", "text": "was made in the different context of the court’s review of a grant of a motion to terminate injunctive relief. Our circuit has previously recognized that the “current and ongoing” requirement is distinct from the standard governing the initial entry of injunctive relief. See Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir.2000) (“[A] ‘current and ongoing violation’ is a violation that exists at the time the district court conducts the § 3626(b)(3) inquiry, and not a potential future violation.”). Additionally, there is no indication in the PLRA, its legislative history, or the case law to suggest that the “current and ongoing” requirement was intended by Congress to amend the well-established law that injunctive relief is available in the first instance “to prevent a substantial risk of serious injury from ripening into actual harm,” i.e., to prevent future harm. Farmer, 511 U.S. at 845, 114 S.Ct. at 1983. The PLRA’s need-narrowness-intrusiveness limitation governs the initial entry of an injunctive relief in prison litigation cases. 18 U.S.C. § 3626(a)(1)(A). Whether there is a “current and ongoing” constitutional violation sufficient to avoid termination of the current injunction is a matter to be considered upon motion by either party in a termination proceeding, at least two years after the district court’s initial award of relief. 18 U.S.C. § 3626(b)(3). Third, the defendants contend that the DOC’s recent reforms have rendered the awarded injunctive relief unnecessary. The defendants point to the additional training in assessing the behavior of inmates that is now provided to corrections officers working in close-management wings, the increase in mental health staff, and the DOC’s discontinuance of the most harmful chemical agent previously employed at FSP. We have recognized that “[s]ubsequent events, such as improvements in the allegedly infirm conditions of confinement, while potentially relevant, are not determinative” of whether injunctive relief is no longer warranted. LaMarca, 995 F.2d at 1541. This is especially true “[w]hen a defendant corrects the alleged infirmity after suit has been filed,” id., “for practices may be reinstated as swiftly as they were suspended,” Gates, 501 F.2d at 1321. The defendants filed this lawsuit in" }, { "docid": "23384255", "title": "", "text": "constitutional violation sufficient to avoid termination of the current injunction is a matter to be considered upon motion by either party in a termination proceeding, at least two years after the district court’s initial award of relief. 18 U.S.C. § 3626(b)(3). Third, the defendants contend that the DOC’s recent reforms have rendered the awarded injunctive relief unnecessary. The defendants point to the additional training in assessing the behavior of inmates that is now provided to corrections officers working in close-management wings, the increase in mental health staff, and the DOC’s discontinuance of the most harmful chemical agent previously employed at FSP. We have recognized that “[s]ubsequent events, such as improvements in the allegedly infirm conditions of confinement, while potentially relevant, are not determinative” of whether injunctive relief is no longer warranted. LaMarca, 995 F.2d at 1541. This is especially true “[w]hen a defendant corrects the alleged infirmity after suit has been filed,” id., “for practices may be reinstated as swiftly as they were suspended,” Gates, 501 F.2d at 1321. The defendants filed this lawsuit in September of 2004, and many of the relied-upon reforms were enacted as recently as July 31, 2008. See Thomas, 2009 WL 64616, at *28 n. 51. Thus, to rely on intervening events occurring after suit has been filed the defendants must satisfy the heavy burden of establishing that these such events “have completely and irrevocably eradicated the effects of the alleged violations.” LaMarca, 995 F.2d at 1542 (internal quotation and citation omitted). Although the DOC’s recent reforms may represent affirmative responses to recognized deficiencies in its ability to address the needs of its growing mentally ill inmate population, see Thomas, 2009 WL 64616, at *9-11, the defendants have not established that they have eradicated the effects of the constitutional violations found by the district court. Indeed, there has been no substantial change to the crucial aspect of the non-spontaneous use-of-force policy that led to the constitutional deficiency found by the district court. See Fla. Admin. Code Ann. r. 33-602.210(17)(n), (o). The policy still applies to all S-3 inmates, regardless of their mental health history. Nor" }, { "docid": "9542985", "title": "", "text": "guilt); Stokes v. Delcambre, 710 F.2d 1120, 1124 (5th Cir.1983) (pretrial detainee’s right to be protected from injury clear since 1979); Jones v. Diamond, 636 F.2d 1364 (5th Cir.) (en banc) (excessive overcrowding and attendant deterioration in living conditions constitutes punishment of pretrial detainees; confining pretrial detainees indiscriminately with convicted persons is constitutional violation unless necessary to maintain security or physical facilities do not permit their separation), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), overruled in part on other grounds, International Woodworkers of America Local No. 5-376 v. Champion Int’l Corp., 790 F.2d 1174, 1175 (5th Cir.1986) (en banc); Curtis v. Everette, 489 F.2d 516 (3d Cir.1973) (prisoner’s liberty interest in personal security), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974). Fauver and Call propose alternative grounds for their immunity from suit. First, they claim that as a matter of law they are immune because they were not responsible for the day-to-day administration of the Burlington County Jail and cannot be held accountable for the actions of those who were so charged. They also contend that under the circumstances of this case, they lacked sufficient knowledge of conditions at the county jail to have known that their actions violated clearly established law. While resolution of the question of an official’s qualified immunity often turns on whether plaintiff has shown a clearly established right, it may also depend upon the complementary question whether defendant had a clearly established duty towards plaintiff. See Hynson, 827 F.2d at 935; Chinchello, 805 F.2d at 131-32. Fau-ver and Call contend that they had no affirmative duty to ensure that Ryan’s rights were not violated by others under Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), as explained by this court in Chinchello. They also contend that they have no direct authority over county officials, and that county officials alone are responsible for the care, custody and control of inmates in county jails. See, e.g., N.J.Stat.Ann. §§ 30:1-16, :8-17, :8-19, :8-57 (West 1981); MacNeil v. Klein, 141 N.J. Super. 394, 358 A.2d" }, { "docid": "23616515", "title": "", "text": "idealistic concepts of dignity, civilized standards, humanity, and decency ...,’” but must be balanced against competing penological goals. Gamble, 429 U.S. at 102, 97 S.Ct. at 290 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)). The evidence presented at trial of an unjustified constant and unreasonable exposure to violence at GCI, as described in part I.B., clearly satisfies this standard. Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986); Williams, 689 F.2d at 1376; see Wilson, — U.S. at-, 111 S.Ct. at 2326-27; Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.) (“When prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners and the level of violence has become so high ... it constitutes cruel and unusual punishment-”), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), and overruled on other grounds by International Woodworkers of Am. v. Champion Intern. Corp., 790 F.2d 1174 (5th Cir.1986); Gates v. Collier, 501 F.2d 1291, 1308-10 (5th Cir. 1974). 2. Second, the plaintiffs must show the defendant’s deliberate indifference to the conditions. The Supreme Court recently held that the Eighth Amendment contains a subjective component: whether the defendant wantonly permitted the constitutionally infirm condition to persist. Wilson, — U.S. at-, 111 S.Ct. at 2323; see also Gamble, 429 U.S. at 104, 97 S.Ct. at 291. In prison condition cases, “deliberate indifference” constitutes wantonness. Wilson, — U.S. at-, 111 S.Ct. at 2327. To be deliberately indifferent, a prison official must knowingly or recklessly disregard an inmate’s basic needs so that knowledge can be inferred. Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Because the Eighth Amendment requires a subjective standard, to demonstrate an official’s deliberate indifference, a plaintiff must prove that the official possessed knowledge both of the infirm condition and of the means to cure that condition, “so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant’s failure to prevent it.” Duck-worth, 780 F.2d at 653. Thus, if an official" }, { "docid": "2684971", "title": "", "text": "timed to anticipate suit, and there is a probability of resumption. United States v. Oregon Medical Soc., 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978 (1952). The test for mootness is: a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave “[t]he defendant ... free to return to his old ways.” A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. United States v. Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968) (citations omitted). See also Allee v. Medrano, 416 U.S. 802, 810-11, 94 S.Ct. 2191, 2198, 40 L.Ed.2d 566 (1974); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953). Although this doctrine developed in the context of antitrust suits brought by the government against private parties, it ap plies with equal force in cases such as this. In Jones v. Diamond, 636 F.2d 1364, 1375 (5th Cir.), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), for instance, the Fifth Circuit refused to vacate an injunction in a prison conditions case even though a new jail had been built and occupied. Noting that the jail was built only after five years of litigation, the Court stated that: [cjhanges made by defendants after a suit is filed do not remove the necessity for injunctive relief, for practices may be reinstated as swiftly as they were suspended. The burden is on the defendants to prove that the wrongs of the past could not reasonably be expected to recur. The record of defendants’ performance permits us to draw no such conclusion, and the improvements in conditions in February 1979, after five and a half years of litigation, does not eliminate the need for an injunction. The provision of a new and sanitary building does not assure that it will be operated in a constitutional way____ Indeed, just last month the Court" }, { "docid": "5370692", "title": "", "text": "of discrimination, federal court intervention is required under the facts of this case. A case becomes moot “when the issues are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). As a general matter, “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982). Many of the changes in policy occurred subsequent to commencement of this lawsuit. There is no doubt that some of the changes were implemented solely because of the pendency of this action. It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is a probability of resumption. United States v. Oregon Medical Soc., 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952). Although some very positive steps have been taken by current administrators, that does not by itself defeat the court’s power to issue injunctive relief. “Mere voluntary cessation of allegedly illegal conduct does not moot a case; ... a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). In cases involving challenges to prison practices, federal courts in this Circuit have not been reluctant to issue injunctive relief in spite of substantial voluntary improvements by prison officials. See Eng v. Smith, 849 F.2d 80, 83 (2d Cir.1988); Fisher v. Koehler, 692 F.Supp. 1519, 1565-66 (S.D.N.Y.1988). The test for mootness in cases such as this is a “stringent” one, with the burden resting heavily on the defendant to prove the absence of a likelihood that the illegality will recur. See United States v. W.T. Grant Co., 345" }, { "docid": "5370693", "title": "", "text": "72 S.Ct. 690, 695, 96 L.Ed. 978 (1952). Although some very positive steps have been taken by current administrators, that does not by itself defeat the court’s power to issue injunctive relief. “Mere voluntary cessation of allegedly illegal conduct does not moot a case; ... a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). In cases involving challenges to prison practices, federal courts in this Circuit have not been reluctant to issue injunctive relief in spite of substantial voluntary improvements by prison officials. See Eng v. Smith, 849 F.2d 80, 83 (2d Cir.1988); Fisher v. Koehler, 692 F.Supp. 1519, 1565-66 (S.D.N.Y.1988). The test for mootness in cases such as this is a “stringent” one, with the burden resting heavily on the defendant to prove the absence of a likelihood that the illegality will recur. See United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); Jones v. Diamond, 636 F.2d 1364, 1375 (5th Cir.1981), overruled on other grounds, International Woodworkers of America v. Champion Int’l Corp., 790 F.2d 1174 (5th Cir.1986) (en banc). In County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979), the Supreme Court held that jurisdiction, properly acquired, may abate if the case becomes moot because (1) it can be said with assurance that “there is no reasonable expectation that the alleged violation will recur ... and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Under this strict standard, defendants have not convinced me that this case is moot and that the Court should decline further involvement in spite of plaintiffs’ proof that serious discriminatory acts occurred in the past. There was some testimony at trial concerning the remedial measures that defendants have taken to rectify discrimination in housing and in jobs. Richard Cerio, a Senior Corrections Counselor, testified" }, { "docid": "2095340", "title": "", "text": "could come into contact with this chemical by entering a sprayed field, after the two to three day safety delay now employed at the penitentiary.” Based on this conjecture, the magistrate enjoined the Angola officials from any further use of Parathion. Sampson also argued that he was subjected to cruel and unusual punishment by being forced to work in a chemical storage area. The magistrate found that, while Sampson was working in the area, he acci-dently fell into a puddle of pesticide. As a result, Sampson became nauseated, dizzy, and had watery eyes. The magistrate concluded that Sampson “was forced to do potentially hazardous work without proper training, supervision, or clothing.” He also concluded that the chemicals were improperly stored in “rusted, open, and in many cases nonlabelled cans.” Because Sampson’s injuries did “not seem to be significant,” he was awarded $250.00, with each defendant individually liable for one half the amount. The Eighth Amendment protects all prisoners from cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 102-OS, 97 S.Ct. 285, 290-291, 50 L.Ed.2d 251 (1976). The role of the federal courts is to enforce that constitutional standard without assuming superintendence of jail administration. Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir.1981) (en banc), cert. denied, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1982). This policy of minimum intrusion is particularly important when a state prison system is involved. Ruiz v. Estelle, 679 F.2d 1115, 1145 (5th Cir.1982); Williams v. Edwards, 547 F.2d 1206, 1212 (5th Cir.1977). Prison conditions can be so bad that it is cruel and unusual punishment to force inmates to endure them. Gates v. Collier, 501 F.2d 1291, 1301 (5th Cir.1974). In determining whether to uphold an eighth amendment challenge to prison conditions, the court must consider whether the totality of the circumstances violates “contemporary standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-50, 101 S.Ct. 2392, 2398-2400, 69 L.Ed.2d 59 (1981); Stewart v. Winter, 669 F.2d 328, 335-36 (5th Cir.1982); Jones v. Diamond, 636 F.2d at 1368; Cerrella v. Hanberry, 650 F.2d 606, 607 (5th Cir.1981), cert. denied, 454" }, { "docid": "2684972", "title": "", "text": "this. In Jones v. Diamond, 636 F.2d 1364, 1375 (5th Cir.), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), for instance, the Fifth Circuit refused to vacate an injunction in a prison conditions case even though a new jail had been built and occupied. Noting that the jail was built only after five years of litigation, the Court stated that: [cjhanges made by defendants after a suit is filed do not remove the necessity for injunctive relief, for practices may be reinstated as swiftly as they were suspended. The burden is on the defendants to prove that the wrongs of the past could not reasonably be expected to recur. The record of defendants’ performance permits us to draw no such conclusion, and the improvements in conditions in February 1979, after five and a half years of litigation, does not eliminate the need for an injunction. The provision of a new and sanitary building does not assure that it will be operated in a constitutional way____ Indeed, just last month the Court of Appeals for this circuit affirmed the granting of a preliminary injunction in a case challenging the mental health services at Attica Correctional Facility, despite defendants’ claims of substantial post-trial improvement, because “[although defendants claim to have voluntarily implemented substantially all of the ordered relief, without a preliminary injunction there is nothing to prevent defendants from abandoning procedures which the court determined to be necessary to protect plaintiffs’ constitutional rights.” Eng v. Smith, 849 F.2d 80, 83 (2d Cir.1988). Here, the record as it stands now gives no assurance that the changes in policy and procedure at CIFM have significantly reduced violence at CIFM. Moreover, to the extent the changes have been successful, it can hardly be said that events have “made it absolutely clear,” as required by Phosphate Export Ass’n., that inmate-inmate violence and staff-inmate excessive force “could not reasonably be expected to recur.” 393 U.S. at 203, 89 S.Ct. at 364. It was clear from his testimony that Commissioner Koehler is attempting in good faith to improve conditions at CIFM, and the determination" }, { "docid": "23616534", "title": "", "text": "relevant, are not determinative. When a defendant corrects the alleged infirmity after suit has been filed, a court may nevertheless grant injunctive relief unless the defendant shows that absent an injunction, the institution would not return to its former, unconstitutionally deficient state. Jones, 636 F.2d at 1375; Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Comm’rs, 622 F.2d 807, 822 (5th Cir.1980) (finding that “the defendant [must] demonstrate that there is no reasonable expectation that the wrong will be re peated” (internal quotations omitted)), cert, denied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981). We have held that [jurisdiction may abate if there is no reasonable expectation the alleged violations will recur and if intervening events have completely and irrevocably eradicated the effects of the alleged violations. To defeat jurisdiction on this basis, however, defendants must offer more than their mere profession that the conduct has ceased and will not be revived. Hall v. Board of School Comm’rs, 656 F.2d 999, 1000-01 (5th Cir. Unit B 1981) (citations omitted). The burden is thus “a heavy one.” United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). The district court, in the damages phase of the case, found that GCI failed to provide inmates with reasonable protection from violence. On appeal, Lambdin has not challenged this determination, but has instead relied on GCI’s elimination of the infirm conditions to defeat the court’s grant of injunc-tive relief. The district court, however, concluded that Lambdin had not taken sufficient steps to ensure that GCI’s past wrongs would not be repeated. The record supports this finding. It was, therefore, appropriate for the court to consider granting the plaintiffs’ request for injunctive relief. B. Second, relying on the court’s observation that Lambdin “appears to be a dedicated public servant who is trying very hard to make GCI an efficient and effective correctional institution,” Lambdin argues that the court erred in ordering injunctive relief. In essence, he asserts that the court should have focused on his deliberate indifference, instead of the institution’s historical indifference." }, { "docid": "18575223", "title": "", "text": "swiftly as they were suspended.” Jones v. Diamond, 636 F.2d 1364, 1375 (5th Cir.1981), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), and overruled on other grounds by Int’l Woodworkers of America v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir.1986); see also Gluth, 951 F.2d at 1507; Gates v. Collier, 501 F.2d 1291, 1321 (5th Cir.1974); Santiago v. Miles, 774 F.Supp. 775, 793-95 (W.D.N.Y.1991) (\"In cases involving challenges to prison practices, federal courts in this circuit have not been reluctant to issue injunctive relief in spite of substantial voluntary improvements by prison officials”); Fisher, 692 F.Supp. at 1565-66. Thus, the burden is on the defendants to prove \"that the wrongs of the past could not reasonably be expected to recur.” Jones, 636 F.2d at 1375; LaMarca, 995 F.2d at 1541-42 (reforms enacted after filing of action challenging prison conditions do not preclude injunctive relief unless defendants show that the institution \"would not return to its former, unconstitutionally deficient state\"); Santiago, 774 F.Supp. at 794. For the reasons discussed in this Court's factual findings, the policy changes that have occurred in the use-of-force area appear not only litigation-inspired but also transitory rather than permanent. We certainly are not persuaded that, absent injunctive relief, the prison would \"not return to its former, unconstitutionally deficient state.” LaMarca, 995 F.2d at 1541. Further, the policy changes at issue do not fully remedy the constitutional violations found herein. . Thomas Lonergan previously served as a court-appointed Monitor for this Court, from December 1982 through June 1994, in Cherco v. County of Sonoma, which involved conditions at the Sonoma County Jail in Santa Rosa, California. He discharged his responsibilities as court Monitor in that case with utmost professionalism, integrity, diligence, and sensitivity to the concerns of all participants, and the Court has complete confidence in his ability to serve' effec tively as a Special Master in this case. He has also served as a court-appointed Special Master, Monitor or expert in 8 other cases including Jordan v. Multnomah County (United States District Court, Oregon), and Fischer v. Winter (United States District" } ]

[ { "docid": "6396891", "title": "", "text": "DUBINA, Circuit Judge: Appellants Gary Lee Culton and Carolyn Sue Culton (“the Cultons” or “the debtors”) appeal the judgment entered by the district court reversing the bankruptcy court’s order dismissing an adversary proceeding filed by the plaintiff-appellee Clay County Bank (“the bank” or “the creditor”) based on §§ 105, 727(d)(1) and 727(d)(3) of the Bankruptcy Code. We' dismiss the appeal for lack of jurisdiction. I. Background Facts The bankruptcy court granted the Cultons a discharge in a Chapter 7 proceeding. After the Cultons received their discharge, their home was burglarized. A police report of the burglary revealed that jewelry and coins worth $42,800 had been taken from the home. Upon learning of the burglary and police report, the bank moved to reopen the bankruptcy case and for permission to file an adversary proceeding to revoke the discharge on the ground that the Cultons had not declared the stolen items in the Chapter 7 proceedings. After a hearing, the bankruptcy court granted the motion, and the bank filed the adversary proceeding. The Cultons moved to dismiss the complaint on the ground that it was barred by the statute of limitations. The bankruptcy court granted the motion and dismissed the adversary proceeding. The bank appealed that order to the district court. The district court reversed the bankruptcy court’s order and reinstated the complaint. The Cultons then perfected this appeal. II. Discussion The bank’s complaint is based on its allegation that the Cultons possessed the stolen jewelry and coins prior to filing their petition and knowingly failed to list such assets in their schedule. The district court, applying the doctrine of equitable tolling, found that the bankruptcy court erred in granting the Cultons’ motion to dismiss. The district court reinstated the adversary proceeding. Prior to oral argument, we sua sponte questioned whether the district court’s order is immediately appealable and directed the parties to address the jurisdictional question. In response to our directive, both parties contend that, although the district court’s order is not final pursuant to 28 U.S.C. § 158(d), it is appealable under 28 U.S.C. § 1292(a)(1), which allows appeals from" } ]

[ { "docid": "17388891", "title": "", "text": "also Malloy v. Frank (In re Frank), 146 B.R. 851, 854 (Bankr.N.D.Okla.1992) (“in recent cases the Supreme Court has repeatedly held that the Bankruptcy Code should be interpreted to give effect to the plain meaning of its terms”). To the Court’s knowledge, the Ninth Circuit has not ruled on equitable tolling under section 727. The majority of courts considering the issue have held that equi table tolling does not excuse untimely initiation of a revocation of discharge. See Rosemary Williams, Creditor’s Right to Have Bankruptcy Discharge of Individual Debtor Revoked, Vacated, and Set Aside, 138 A.L.R.Fed. 253 § 12(a) (1997); Davis v. Johnson (In re Johnson), 187 B.R. 984, 988 (Bankr.S.D.Cal.1995). For example, in In re Johnson, the court held that equitable tolling could not be applied correctly to section 727 because if equitable tolling due to fraud stayed the running of those express time periods, it would render section 727(e)’s time limits moot. 187 B.R. at 988. Other courts within the Ninth Circuit and beyond have similarly refused to allow equitable tolling to provide an alternate time period for filing revocation claims. See In re Blanchard, 241 B.R. at 464-65; In re Frank, 146 B.R. at 854. Case law and treatises almost unanimously favor reading sections 727(d)(1) and (e)(1) as prohibitive of equitable tolling. See 6 Collier on Bankruptcy ¶ 727.16(1) (15th ed.1996) (section 727(d)(1) is not a statute of limitations, but “an essential prerequisite to the proceeding. The year undoubtedly beings to run from the date of entry of the order of discharge, and not from discovery of the fraud.... The one-year period is not tolled by the debtor’s concealment of assets”); In re Johnson, 187 B.R. at 988 (citing five cases from various jurisdictions concluding that equitable tolling does not apply to actions under section 727(d)(1)). Some courts have found that section 727(e)(2), which mandates the time limit for revocations under section 727(d)(2) and 727(d)(3), is not inconsistent with equitable tolling because it applies to situations beyond fraudulent concealment. See In re Phillips, 233 B.R. at 718 n. 5; Dwyer v. Peebles (In re Peebles), 224 B.R." }, { "docid": "18531002", "title": "", "text": "held that a creditor “forfeited” the right to seek revocation under § 727(d)(1) for alleged fraud \"when it failed to seek revocation within one year of the order of discharge, as required by statute.” . Prior to Kontrick, the district court in Dean v. McDow, 299 B.R. 133 (E.D.Va.2003), held that § 727(e) was a nonjurisdictional statute and, being in the nature of a statute of limitations, was waived by a debtor failing to raise it in her answer or responsive pleading. (The issue of untimeliness was raised by the debtor for the first time on appeal from a bankruptcy court decision revoking her discharge.) Id. at 138-39. The court’s decision was based in part on Farouki v. Emirates Bank Int’l, Ltd., 14 F.3d 244 (9th Cir.1994). The court stated: \"Although Farouki was decided in the context of Bankruptcy Rule 4004(a), rather than § 727(e)(1), there is nothing in [debtor’s] brief or Farouki itself to indicate that the dis-chargeability time limitation of the former should be treated differently from the latter.” Id. at 138. Of course, both Dean and Farouki were prior to Kontrick. . See also Towers v. Boyd (In re Boyd), 243 B.R. 756, 763-64 (N.D.Cal.2000) (noting the Rule 9024 exception regarding § 727(e) time limits, and also holding § 727(e) not subject to equitable tolling as the same \"is not permissible where it is inconsistent with the text of the relevant statute.”) (citation omitted). . As the Supreme Court stated in another context: \"Deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality.” Taylor v. Freeland & Kronz, 503 U.S. 638, 644, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). . Given this conclusion, the Court need not consider whether Trustee can satisfy the § 727(d)(1) requirement of lack of knowledge of facts regarding Debtor’s fraud prior to discharge given the disclosures made in testimony at the § 341(a) meeting. .Many of the decisions on § 727(e) consider assertions of “equitable tolling,” which is an argument that the time bars can be extended if the fraudulent conduct of the debtor is concealed" }, { "docid": "8063580", "title": "", "text": "the plaintiff-creditor had a viable objection to the debtor’s discharge, but was unable to timely pursue the objection because the debtor had neither scheduled plaintiffs debt nor notified the plaintiff of the bankruptcy until 19 months after the case had been filed. The plaintiff brought suit seeking a judgment declaring her debt to be excepted from discharge pursuant to § 523(a)(3)(a) and denying the debtor’s discharge pursuant to § 727(d)(1). Judge Perris noted that: Congress has ... enacted a statute which makes a fraudulently obtained discharge uncontestable after one year. Section 727(e) provides that a request for revocation of a discharge on the grounds of fraud must be made within one year after such discharge is granted. 159 B.R. at 592. Congress has spoken on the question of fraud and for whatever reasons has seen fit to make discharges uncontestable on the grounds of fraud after one year. It is not my place to question what Congress has decreed, provided such a decree is permitted by the Constitution. 159 B.R. at 593. The plaintiff argues that two cases decided by the Ninth Circuit Court Of Appeals in 1994 require that the Ford decision be revisited. See In re United Insurance Management, Inc., 14 F.3d 1380 (9th Cir.1994) and In re Olsen 36 F.3d 71 (9th Cir.1994). In United Insurance Management, Inc. the court held that § 546(a)(1) is subject to equitable tolling in proper circumstances. In Olsen, the court concluded that equitable tolling may be applied to § 549(d). Accordingly, the plaintiff argues that since equitable tolling may be applied in cases dealing with the exercise, by the trustee, of his avoidance powers and in cases involving recovery of unauthorized postpetition transfers of property of the estate, that the doctrine should also apply, in appropriate circumstances, to actions brought under § 727(d)(1). Since the cases cited above were decided after the decision in In re Ford, the plaintiff urges this court to revisit that holding. Notwithstanding the two 9th Circuit cases referred to above, this court believes that In re Ford remains good law in this district. Collier explains that" }, { "docid": "8063581", "title": "", "text": "that two cases decided by the Ninth Circuit Court Of Appeals in 1994 require that the Ford decision be revisited. See In re United Insurance Management, Inc., 14 F.3d 1380 (9th Cir.1994) and In re Olsen 36 F.3d 71 (9th Cir.1994). In United Insurance Management, Inc. the court held that § 546(a)(1) is subject to equitable tolling in proper circumstances. In Olsen, the court concluded that equitable tolling may be applied to § 549(d). Accordingly, the plaintiff argues that since equitable tolling may be applied in cases dealing with the exercise, by the trustee, of his avoidance powers and in cases involving recovery of unauthorized postpetition transfers of property of the estate, that the doctrine should also apply, in appropriate circumstances, to actions brought under § 727(d)(1). Since the cases cited above were decided after the decision in In re Ford, the plaintiff urges this court to revisit that holding. Notwithstanding the two 9th Circuit cases referred to above, this court believes that In re Ford remains good law in this district. Collier explains that the time limitation ... is not a mere statute of limitations, but an essential prerequisite to the proceeding. The year undoubtedly begins to run from the date of entry of the order of discharge and not from the discovery of the fraud. It was once thought that request to the court to vary or annul the order may be made after that time, though a court could properly refuse such an application when clearly made for the purpose of avoiding this limitation. But Bankruptcy Rule 9024, while making Fed.R.Civ.P. 60 applicable to bankruptcy cases, specifically provides that such application of the Civil Rule does not permit extension of the time allowed by section 727 of the Code for the filing of a complaint to revoke a discharge. The 1983 Advisory Committee note to Rule 9024 states that this makes clear that Rule 60(b) affords no basis for circumvention of the time limitations prescribed by section 727 for the commencement of any proceeding to revoke a discharge. 4 King, Collier on Bankruptcy § 727.16 (15th Ed.1993)" }, { "docid": "8063582", "title": "", "text": "the time limitation ... is not a mere statute of limitations, but an essential prerequisite to the proceeding. The year undoubtedly begins to run from the date of entry of the order of discharge and not from the discovery of the fraud. It was once thought that request to the court to vary or annul the order may be made after that time, though a court could properly refuse such an application when clearly made for the purpose of avoiding this limitation. But Bankruptcy Rule 9024, while making Fed.R.Civ.P. 60 applicable to bankruptcy cases, specifically provides that such application of the Civil Rule does not permit extension of the time allowed by section 727 of the Code for the filing of a complaint to revoke a discharge. The 1983 Advisory Committee note to Rule 9024 states that this makes clear that Rule 60(b) affords no basis for circumvention of the time limitations prescribed by section 727 for the commencement of any proceeding to revoke a discharge. 4 King, Collier on Bankruptcy § 727.16 (15th Ed.1993) at p. 727-113 The very wording of § 727 prevents application of the doctrine of equitable tolling. Note that an interested party may bring an action to revoke discharge only if “... the requesting party did not know of such fraud until after the granting of such discharge;' § 727(d)(1), in part. Yet, § 727(e)(1) requires that revocation of discharge be requested “... within one year after such discharge is granted;” if the doctrine of equitable tolling were to be applied, the one year period prescribed in § 727(e)(1) would not begin until the fraud were discovered by the requesting party. Yet the statute clearly indicates that the one year period of time begins to run upon entry of the discharge at a time, when, by its terms, the requesting party is ignorant of the fraud. To borrow the wording of the Supreme Court, the doctrine of equitable tolling is fundamentally inconsistent with the provisions of § 727(d)(1) and § 727(e)(1). The plaintiffs policy arguments are equally unavailing. In essence, the plaintiff argues that the" }, { "docid": "18608264", "title": "", "text": "727(e)(2) limitation period because of debtor’s continuing concealment of assets. The court relied on the use of equitable tolling in § 546 cases, the Supreme Court’s statement that “the equitable tolling doctrine should be read into every federal statute of limitations,” and the § 554(d) policy of preventing a debtor from benefiting from his fraud. However, the court expressly limited its holding to complaints brought under § 727(d)(2) and noted that many courts have held that the time period in § 727(e)(1) may not be extended or tolled. Id at 173. This Court agrees with the Sueca court and the cases cited therein that the § 727(e)(1) limitations period cannot be equitably tolled. As stated in In re Bulbin, 122 B.R. at 162, [t]he untimeliness of the complaint is unaltered by the plaintiffs belated knowledge of the case: § 727(d)(1) itself requires that ‘the requesting party did not know of [the] fraud [in obtaining discharge] until after granting of [the] discharge’ and § 727(e)(1) nevertheless only allows one year after granting of the discharge to request revocation based on such late-discovered fraud. This Court finds no reason to equitably extend the limitations period set up by Congress for late-discovered fraud. Moreover, the equities do not favor this Plaintiff who had sufficient knowledge before the one-year period ended to properly file a complaint to revoke discharge. Reopening In the alternative, Plaintiff argues that this action was timely filed because it was filed after the bankruptcy case was reopened. This argument, however, is not persuasive. This case is factually similar to In re Culton, 161 B.R. 76 (Bankr.M.D.Fla.1993). In that case the debtors had received their dis charge on April 17, 1989 and the case was closed on May 17, 1989. In 1992, the Clay County Bank filed a motion to reopen the case and to have a trustee appointed to investigate whether the debtors had acquired certain assets prior to the discharge. The court entered an order reopening the case to allow the appointment of a trustee to investigate whether there were assets of the estate to administer. The Bank filed" }, { "docid": "8063583", "title": "", "text": "at p. 727-113 The very wording of § 727 prevents application of the doctrine of equitable tolling. Note that an interested party may bring an action to revoke discharge only if “... the requesting party did not know of such fraud until after the granting of such discharge;' § 727(d)(1), in part. Yet, § 727(e)(1) requires that revocation of discharge be requested “... within one year after such discharge is granted;” if the doctrine of equitable tolling were to be applied, the one year period prescribed in § 727(e)(1) would not begin until the fraud were discovered by the requesting party. Yet the statute clearly indicates that the one year period of time begins to run upon entry of the discharge at a time, when, by its terms, the requesting party is ignorant of the fraud. To borrow the wording of the Supreme Court, the doctrine of equitable tolling is fundamentally inconsistent with the provisions of § 727(d)(1) and § 727(e)(1). The plaintiffs policy arguments are equally unavailing. In essence, the plaintiff argues that the defendant’s fraudulent conduct should not go unpunished. The defendants argue that as a matter of public policy, and in furtherance of the defendants fresh start envisioned by the Bankruptcy Code, that debtors are entitled to an early determination as to whether or not their discharge will be granted and survive since they must know if they can get on with their financial lives. Again, this court agrees with the pronouncements of Judge Perris in In re Ford, the policy arguments have been resolved by Congress and it is not the province of this court to question what Congress has decreed. The Supreme Court has admonished us to give statutes their plain meaning. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). CONCLUSION This court concludes that § 727(e)(1) is not subject to the doctrine of equitable tolling. Accordingly, defendants’ motion for judgment on the pleadings should be granted, an order consistent herewith shall be entered. This opinion contains the court’s findings of facts and conclusions of law" }, { "docid": "1179826", "title": "", "text": "for an extension of the time to file a complaint objecting to discharge must, pursuant to Bankruptcy Rules 4004(b) and 9006(b)(3), be filed before expiration of the original bar date set by Bankruptcy Rule 4004(a). E.g. In re McDowell, 57 B.R. 310 (Bankr.M.D.Pa.1986); Chaudhry, 56 B.R. at 830; Bradco Supply Corp. v. Lane (In re Lane), 37 B.R. 410, 413-14 (Bankr.E.D.Va.1984). Thus, Northeastern Real Estate Securities Corp. and its progeny, which allowed post bar date extension motions on a showing of fraudulent concealment, no longer have any force because post bar date extension motions are now expressly prohibited. Bankruptcy Rule 4004(b) read together with 11 U.S.C. §§ 727(d)(1) and 727(e) creates a Catch 22 situation for the trustee. Under 11 U.S.C. § 727(d)(1) and (e) the trustee or a creditor can move to revoke discharge for fraud of the debtor if the requesting party did not know of the fraud until after the discharge was granted. But if the trustee discovers the fraud before discharge but after the last date to object to discharge, he apparently has no remedy. That result defies logic and cannot have been intended by Congress. Fraudulent concealment of a cause of action results in the equitable tolling of federal statutes of limitation in the absence of contrary congressional intent. Cook v. Deltona Corp., 753 F.2d 1552, 1562 (11th Cir.1985); see generally 2 Moore’s Federal Practice, ¶ 3.07[3] at 3-76 (2d ed. 1986). There does not appear to be any reason why the limitations period established by Bankruptcy Rule 4004 for discharge complaints should not be tolled when a ground for an objection to discharge has been fraudulently concealed. Though the question is not now before me, it would seem that the tolling of the limitations period could not extend beyond the date of the debtor’s discharge. After discharge, discovery of a debtor’s fraudulent concealment of grounds for objection to discharge would fall within the purview of 11 U.S.C. § 727. In any event, the burden is on the party asserting fraudulent concealment to plead and prove its applicability. Rutledge v. Boston Woven Hose & Rubber" }, { "docid": "16416355", "title": "", "text": "in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C.A. § 350(b) (West 1993). In this case, the Bank seeks to reopen so that it may challenge the dischargeability of its debt. In other words, it is seeking to reopen the case “for other cause.” Whether or not to reopen the case is a decision solely within the discretion of the bankruptcy court. In re Cheely, 280 B.R. 763, 765 (Bankr.M.D.Ga.2002). The Court will not reopen the case if doing so would be futile — i.e., if the Bank’s complaint is time-barred. Relief From Judgment or Order At the July 23, 2002, hearing, the Bank argued for relief under Federal Rule of Civil Procedure 60(b), made applicable to bankruptcy through Federal Rule of Bankruptcy Procedure 9024. Under Rule 60(b), a party may seek relief from a judgment or an order due to fraud or newly discovered evidence within one year of the judgment. Based on testimony of the Bank’s loan officer, the Bank is seeking relief on the grounds that Debtor fraudulently concealed his physical condition from the Bank. In this case, the only order from which the Bank could seek relief is the order granting Debtors a discharge. Bankruptcy Rule 9024 modifies Rule 60 to allow relief from a discharge order only to the extent allowed under Section 727(e) of the Bankruptcy Code, which provides for revocation of discharge. Section 727(e) must be read in conjunction with Section 727(d). When read together, they specifically anticipate the possibility that a debtor’s fraud may go undiscovered but, nevertheless, impose a one-year time limit on revoking the discharge. Dahar v. Bevis (In re Bevis), 242 B.R. 805, 809 (Bankr.D.N.H.1999). Although equitable tolling might be applied to stop the running of the deadline, doing so would directly conflict with the statute. Id. (“[W]hen § 727(e)(1) is placed against the backdrop of § 727(d)(1), it appears that Congress did not intend for equitable tolling to apply to § 727(e)(1).”) Because the one-year deadline for a motion for relief from discharge" }, { "docid": "16416356", "title": "", "text": "the Bank is seeking relief on the grounds that Debtor fraudulently concealed his physical condition from the Bank. In this case, the only order from which the Bank could seek relief is the order granting Debtors a discharge. Bankruptcy Rule 9024 modifies Rule 60 to allow relief from a discharge order only to the extent allowed under Section 727(e) of the Bankruptcy Code, which provides for revocation of discharge. Section 727(e) must be read in conjunction with Section 727(d). When read together, they specifically anticipate the possibility that a debtor’s fraud may go undiscovered but, nevertheless, impose a one-year time limit on revoking the discharge. Dahar v. Bevis (In re Bevis), 242 B.R. 805, 809 (Bankr.D.N.H.1999). Although equitable tolling might be applied to stop the running of the deadline, doing so would directly conflict with the statute. Id. (“[W]hen § 727(e)(1) is placed against the backdrop of § 727(d)(1), it appears that Congress did not intend for equitable tolling to apply to § 727(e)(1).”) Because the one-year deadline for a motion for relief from discharge order has passed and because equitable tolling could not apply to the deadline, such a motion provides no basis for relief to the Bank and, therefore, no cause for reopening Debtor’s bankruptcy case. Determination of Dischargeability Although the Bank cannot succeed on a Rule 60 motion, another option available to it is to file a nondischargeability complaint. Section 523(a) of the Bankruptcy Code excepts 19 types of debts from discharge. The apparent basis for a complaint by the Bank is the Phillips’ alleged fraud in misrepresenting the state of Mr. Phillips’ health to obtain a loan. Under Section 523(a)(2)(A), a debt is nondischargeable if obtained by “false pretenses, a false representation, or actual fraud.” 11 U.S.C.A. § 523(a)(2)(A) (West 1993 & Supp.2002). Debts obtained by fraud also fall within the scope of Section 523(c)(1), which provides that debts of the kind in Sections 523(a)(2), (4), (6), and (15) will be discharged unless a bankruptcy court determines otherwise. The Bankruptcy Rules establish the deadlines for filing a nondischargeability complaint. Under Rule 4007(b), “[a] complaint other than" }, { "docid": "18494449", "title": "", "text": "undiscovered fraud and unknown acquisition of property of the estate, Congress wrote the statutes of limitation found in § 727(e)(1) and (e)(2). Agreement with the Sueca court’s conclusions would wipe those provisions from the books. Under the Sueca rationale, if the debtor has acquired or become entitled to acquire an asset which under 11 U.S.C. § 541 would be property of the estate, the case can never be closed properly, such that the limitations period of 727(e)(2) would never commence to run. Yet that is the precise set of circumstances § 727(d)(2) and (e)(2) were written to regulate. As noted, the Sueca court also concluded that equitable tolling would apply to make the trustee’s complaint timely. The Sueca court found no other court decision so holding, but rather borrowed from cases decided under a trustee’s avoiding powers with the general statute of limitations of 11 U.S.C. § 546, and where fraudulent concealment is not an element of any of the avoidance causes of action. This Court recognizes that equitable tolling may apply to a trustee’s avoiding cause of action under §§ 544-549. In re Olsen, 36 F.3d 71 (9th Cir.1994); In re United Ins. Management, Inc., 14 F.3d 1380 (9th Cir.1994); In re Candor Diamond Corp., 76 B.R. 342 (Bankr.S.D.N.Y.1987); White v. Boston, 104 B.R. 951 (S.D.Ind.1989). But application of equitable tolling to the general statute of limitations for avoidance actions does not support its application in proceedings to revoke a discharge. A leading treatise, Collier on Bankruptcy, pp. 727-113-114 (15th Ed.1991) observes that the limitations periods of § 727(e) have particular import: This is not a mere statute of limitations, but an essential prerequisite to the proceeding. The year undoubtedly begins to run from the date of entry of the order of discharge, and not from the discovery of the fraud_ Bankruptcy Rule 9024, while making Fed.R.Civ.P. 60 applicable to bankruptcy eases, specifically provides that such application of the Civil Rule does not permit extension of the time allowed by section 727 of the Code for the filing of a complaint to revoke a discharge. The 1983 Advisory Committee" }, { "docid": "18302943", "title": "", "text": "debtor receives his or her discharge. Yet § 727(e)(1) clearly imposes a one-year time limit beginning from the date of the debtor’s discharge, notwithstanding the fact that the party requesting revocation has not discovered the relevant fraud until some time after discharge. Accordingly, when § 727(e)(1) is placed against the backdrop of § 727(d)(1), it appears that Congress did not intend for equitable tolling to apply to § 727(e)(1). Bevis, 242 B.R. at 809. In a similar vein, some Courts hold that Code § 727(e)(1) is not merely a statute of limitations, but an essential prerequisite to the proceeding. In re Ford, 159 B.R. 590, 592 (Bankr.D.Or.1993); In re Barrup, 53 B.R. 215, 219 (Bankr.D.Vt.1985)(citing In re Santos, 24 B.R. 688 (Bankr.D.R.1.1982)). Courts also discern support for the conclusion that equitable tolling does not apply from Federal Rules of Bankruptcy Procedure 9024 and 9006. Apex Wholesale Inc. v. Blanchard (In re Blanchard), 241 B.R. 461, 465 (Bankr.S.D.Cal.1999); In re Phillips, 233 B.R. 712, 716-717 (Bankr. W.D.Tx.1999). Although Rule 9024 makes Federal Rule of Civil Procedure 60 applicable to bankruptcy proceedings, it specifically provides that complaints to revoke discharges “may be filed only within the time allowed by § 727(e) of the Code.” Fed. R. Bankr.Pro. 9024. Further, these courts point out that although Rule 9006 permits Courts to exercise discretion to enlarge time periods, the rule plainly states that courts “may not enlarge the time for taking action under Rule ... 9024.” Fed. R. Bankr .Pro. 9006. The majority of courts that have considered application of equitable tolling to § 727(e)(2) have similarly concluded that the doctrine does not toll that subsection’s time limit. See, e.g., Humphreys v. Stedham (In re Stedham), 327 B.R. 889, 904 (Bankr.W.D.Tenn.2005); Dolliver, 255 B.R. at 256-257; Bevis, 242 B.R. at 809; Blanchard, 241 B.R. at 465; Johnson, 187 B.R. at 986-988. These courts agree that equitable tolling generally applies to every federal statute, but view its applicability to be narrowed by the decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gil bertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). One" }, { "docid": "17388889", "title": "", "text": "discharge of a case when that discharge is obtained through fraud about which the requesting party did not know before the discharge was granted. Section 727(d)(2) permits revocation of discharge when a debtor acquired or became entitled to property of the estate that it knowingly and fraudulently failed to report, deliver or surrender to the trustee. If Towers’ factual allegations are true, then he may have had the right to revoke the discharge pursuant to section 727. However, to successfully revoke discharge under section 727, Towers had to meet section 727(e)’s time limits. Bankruptcy Code section 727(e)(1) requires that a trustee must request to revoke discharge under section 727(d)(1) within one year after discharge is granted, and section 727(e)(2) 'requires that a request under section 727(d)(2) must be made before the later of a) one year after the granting of discharge, and b) the date the case is closed. The Boyds’ case was discharged on January 27, 1996, and the case was closed oh February 7, 1996. Towers’ complaint was not filed until April 21, 1998, well beyond the last possible date on which he could commence a revocation action. In addition to the limiting language in section 727, the bankruptcy rules carefully restrict the time period for bringing revocation actions. Bankruptcy Rule 9024, which makes Federal Rule of Civil Procedure 60 (Relief from Judgment or Order) applicable to bankruptcy proceedings, specifically prohibits application of the civil rule to revocation of discharge claims under section 727(e). The 1983 Advisory Committee Note to Rule 9024 emphasizes that pursuant to section 727(e), a complaint to revoke discharge must be filed within one year of discharge or the later of one year after discharge or the date the case is closed. Thus, the bankruptcy code and rules do not contemplate equitable tolling because of a debtor’s fraud. The Court is mindful that “equitable tolling is not permissible where it is inconsistent with the text of the relevant statute.” Apex Wholesale, Inc. v. Blanchard (In re Blanchard), 241 B.R. 461, 465 (Bankr.S.D.Cal.1999) (quoting Casciato-Northrup v. Phillips (In re Phillips), 233 B.R. 712 (Bankr.W.D.Tex.1999)); see" }, { "docid": "14711004", "title": "", "text": "that Congress intended to toll those deadlines. Accordingly, based on the facts of this case, the Court rejects the Trustee’s request to toll the deadline in § 727(e)(2) and to revoke the Debtors’ discharge. While the Court recognizes that such a ruling may have the effect of protecting debtors that might not be “member[s] of the class of ‘honest but unfortunate debtor[s]’ that the bankruptcy laws were enacted to protect,” it is not the duty of this Court to rewrite the statute but to interpret it. The Court believes that there are other equitable remedies that are available to the Trustee besides revoking the Debtors’ discharge after the statutory deadlines have passed. V. CONCLUSION Based on the foregoing, the Court concludes that the case was properly closed pursuant to § 350(a), and equitable tolling does not apply to extend the deadlines in § 727(e). Therefore, the Trustee’s claims under § 727(d)(2) are time barred, and the Trustee’s request to revoke' the Debtors’ discharge is denied. Nevertheless, the Court concludes that the cause of action for money judgment is not time barred because it is based on an entirely different premise. Accordingly, the Debt- or’s motion is granted in part and denied in part. The adversary proceeding will remain open to allow the Trustee to proceed on its cause of action for a money judgment. A separate order memorializing these findings and conclusions was entered on March 25, 2009. . Unless otherwise noted, all subsequent statutory references are to Title 11 of the United States Code. . This Memorandum Decision constitutes the Court's Endings of fact and conclusions of law under Rule 52 of the Federal Rules of Civil Procedure, made applicable to this proceeding by Rule 7052 of the Federal Rules of Bankruptcy Procedure. . 11 U.S.C. § 727(e)(2). . 125 B.R. 168, 171 (Bankr.W.D.Tex.1991). . 224 B.R. 519, 521 (Bankr.D.Mass.1998). . In re Succa, 125 B.R. at 171; In re Peebles, 224 B.R. at 521. . Id. . 362 B.R. 207, 214-15 (Bankr.D.N.J.2007). . Id.; see also Hadlock v. Dolliver (In re Dolliver), 255 B.R. 251, 255 (Bankr.D.Me.2000). ." }, { "docid": "18302941", "title": "", "text": "Id. at 173. Finally, the Court relied upon the statement in Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946) that the “equitable tolling doctrine is read into every federal statute of limitations.” The analysis performed by the Court in Sueca was adopted by the Court in Dwyer v. Peebles (In re Peebles), 224 B.R. 519, 523 (Bankr.D.Mass.1998), which also found that the statute of limitations in § 727(e)(2) could be equitably tolled. However, the majority of cases that have considered the issues identified above, have concluded that neither a case closed with an unadministered asset nor the equitable tolling doctrine tolls the running of the time limits in § 727(e). See, e.g. Hadlock, v. Dolliver (In re Dolliver), 255 B.R. 251 (Bankr.D.Me.2000); Towers v. Boyd (In re Boyd), 243 B.R. 756 (N.D.Cal.2000); Dahar v. Bevis (In re Bevis), 242 B.R. 805 (Bankr.D.N.H.1999)(and cases cited therein); Casciato-Northrup v. Phillips (In re Phillips), 233 B.R. 712 (Bankr.W.D.Tex.1999); Davis v. Johnson (In re Johnson), 187 B.R. 984 (Bankr. S.D.Cal.1995). Because the Court finds the majority’s analysis, as set forth below, to be more persuasive, it finds the Trustee’s complaint untimely and denies his request to revoke the Debtor’s discharge. With regard to the time limitation in § 727(e)(1), the majority’s reasoning is that the express statutory language presumes that the party seeking revocation did not know of the fraud until after discharge, and it therefore is inappropriate to use the equitable tolling doctrine. The Court in Bevis cogently elaborated on the issue as follows: Reading the doctrine of equitable tolling into § 727(e)(1) appears to upset a decision already made by Congress. Section 727(e)(1), when read in conjunction with § 727(d)(1), appears already to account for circumstances that equitable tolling is designed to remedy. Section 727(d)(1), by its express terms, is not applicable unless the party requesting the revocation of a debtor’s discharge did not know of the operative fraud until after the granting of a discharge. Thus, the application of § 727(d)(1) always involves a party who has not discovered fraud until some period after the" }, { "docid": "18608263", "title": "", "text": "argues that the Defendant should not profit from a statute of limitations which continues to run for the period in which Defendant concealed assets. Id. at 171-72. In Sueco, the debtor received his chapter 7 discharge on March 28, 1988, and the case was closed on June 30, 1988. Upon the trustee’s request, the case was reopened to allow the trustee to administer the debtor’s interest in a condemnation proceeding. The debtor had not scheduled this asset nor had he disclosed or turned over to the trustee the $19,900.00 received. The Sueca court found that the estate had not been properly closed because all assets were not administered. It held that the case was improperly closed, and the time periods set forth in § 727(e)(2) had not yet begun to run. Thus, the trustee’s complaint was timely filed although it was filed more than one year after the debtor’s discharge and after the case was closed. The Sueca court also found that the principle of equitable tolling applied to toll the running of the § 727(e)(2) limitation period because of debtor’s continuing concealment of assets. The court relied on the use of equitable tolling in § 546 cases, the Supreme Court’s statement that “the equitable tolling doctrine should be read into every federal statute of limitations,” and the § 554(d) policy of preventing a debtor from benefiting from his fraud. However, the court expressly limited its holding to complaints brought under § 727(d)(2) and noted that many courts have held that the time period in § 727(e)(1) may not be extended or tolled. Id at 173. This Court agrees with the Sueca court and the cases cited therein that the § 727(e)(1) limitations period cannot be equitably tolled. As stated in In re Bulbin, 122 B.R. at 162, [t]he untimeliness of the complaint is unaltered by the plaintiffs belated knowledge of the case: § 727(d)(1) itself requires that ‘the requesting party did not know of [the] fraud [in obtaining discharge] until after granting of [the] discharge’ and § 727(e)(1) nevertheless only allows one year after granting of the discharge to" }, { "docid": "17388890", "title": "", "text": "1998, well beyond the last possible date on which he could commence a revocation action. In addition to the limiting language in section 727, the bankruptcy rules carefully restrict the time period for bringing revocation actions. Bankruptcy Rule 9024, which makes Federal Rule of Civil Procedure 60 (Relief from Judgment or Order) applicable to bankruptcy proceedings, specifically prohibits application of the civil rule to revocation of discharge claims under section 727(e). The 1983 Advisory Committee Note to Rule 9024 emphasizes that pursuant to section 727(e), a complaint to revoke discharge must be filed within one year of discharge or the later of one year after discharge or the date the case is closed. Thus, the bankruptcy code and rules do not contemplate equitable tolling because of a debtor’s fraud. The Court is mindful that “equitable tolling is not permissible where it is inconsistent with the text of the relevant statute.” Apex Wholesale, Inc. v. Blanchard (In re Blanchard), 241 B.R. 461, 465 (Bankr.S.D.Cal.1999) (quoting Casciato-Northrup v. Phillips (In re Phillips), 233 B.R. 712 (Bankr.W.D.Tex.1999)); see also Malloy v. Frank (In re Frank), 146 B.R. 851, 854 (Bankr.N.D.Okla.1992) (“in recent cases the Supreme Court has repeatedly held that the Bankruptcy Code should be interpreted to give effect to the plain meaning of its terms”). To the Court’s knowledge, the Ninth Circuit has not ruled on equitable tolling under section 727. The majority of courts considering the issue have held that equi table tolling does not excuse untimely initiation of a revocation of discharge. See Rosemary Williams, Creditor’s Right to Have Bankruptcy Discharge of Individual Debtor Revoked, Vacated, and Set Aside, 138 A.L.R.Fed. 253 § 12(a) (1997); Davis v. Johnson (In re Johnson), 187 B.R. 984, 988 (Bankr.S.D.Cal.1995). For example, in In re Johnson, the court held that equitable tolling could not be applied correctly to section 727 because if equitable tolling due to fraud stayed the running of those express time periods, it would render section 727(e)’s time limits moot. 187 B.R. at 988. Other courts within the Ninth Circuit and beyond have similarly refused to allow equitable tolling to provide" }, { "docid": "8063579", "title": "", "text": "begins after discovery of the facts constituting the violation, making tolling unnecessary ... Because the purpose of the three year limitation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period. Litigation instituted pursuant to § 10(b) and Rule 10(b)-5 therefore “must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.” 501 U.S. at 363-64, 111 S.Ct. at 2782. A number of courts have considered the question of whether or not the doctrine of equitable tolling can be applied within the context of § 727(e)(1). Most of them held that the doctrine may not be applied. See In re Culton, 161 B.R. 76 (Bankr.M.D.Fla.1993); In re Bulbin, 122 B.R. 161 (Bankr.D.C.1990); and In re Fresquez, 167 B.R. 973 (Bankr.D.N.M.1994); but see In re Sueca, 125 B.R. 168 (Bankr.W.D.Tex.1991) where the court reached a contrary result. In this district the question has been considered by Judge Perris in In re Ford, 159 B.R. 590 (Bankr.D.Or.1993). There, the plaintiff-creditor had a viable objection to the debtor’s discharge, but was unable to timely pursue the objection because the debtor had neither scheduled plaintiffs debt nor notified the plaintiff of the bankruptcy until 19 months after the case had been filed. The plaintiff brought suit seeking a judgment declaring her debt to be excepted from discharge pursuant to § 523(a)(3)(a) and denying the debtor’s discharge pursuant to § 727(d)(1). Judge Perris noted that: Congress has ... enacted a statute which makes a fraudulently obtained discharge uncontestable after one year. Section 727(e) provides that a request for revocation of a discharge on the grounds of fraud must be made within one year after such discharge is granted. 159 B.R. at 592. Congress has spoken on the question of fraud and for whatever reasons has seen fit to make discharges uncontestable on the grounds of fraud after one year. It is not my place to question what Congress has decreed, provided such a decree is permitted by the Constitution. 159 B.R. at 593. The plaintiff argues" }, { "docid": "18302942", "title": "", "text": "finds the majority’s analysis, as set forth below, to be more persuasive, it finds the Trustee’s complaint untimely and denies his request to revoke the Debtor’s discharge. With regard to the time limitation in § 727(e)(1), the majority’s reasoning is that the express statutory language presumes that the party seeking revocation did not know of the fraud until after discharge, and it therefore is inappropriate to use the equitable tolling doctrine. The Court in Bevis cogently elaborated on the issue as follows: Reading the doctrine of equitable tolling into § 727(e)(1) appears to upset a decision already made by Congress. Section 727(e)(1), when read in conjunction with § 727(d)(1), appears already to account for circumstances that equitable tolling is designed to remedy. Section 727(d)(1), by its express terms, is not applicable unless the party requesting the revocation of a debtor’s discharge did not know of the operative fraud until after the granting of a discharge. Thus, the application of § 727(d)(1) always involves a party who has not discovered fraud until some period after the debtor receives his or her discharge. Yet § 727(e)(1) clearly imposes a one-year time limit beginning from the date of the debtor’s discharge, notwithstanding the fact that the party requesting revocation has not discovered the relevant fraud until some time after discharge. Accordingly, when § 727(e)(1) is placed against the backdrop of § 727(d)(1), it appears that Congress did not intend for equitable tolling to apply to § 727(e)(1). Bevis, 242 B.R. at 809. In a similar vein, some Courts hold that Code § 727(e)(1) is not merely a statute of limitations, but an essential prerequisite to the proceeding. In re Ford, 159 B.R. 590, 592 (Bankr.D.Or.1993); In re Barrup, 53 B.R. 215, 219 (Bankr.D.Vt.1985)(citing In re Santos, 24 B.R. 688 (Bankr.D.R.1.1982)). Courts also discern support for the conclusion that equitable tolling does not apply from Federal Rules of Bankruptcy Procedure 9024 and 9006. Apex Wholesale Inc. v. Blanchard (In re Blanchard), 241 B.R. 461, 465 (Bankr.S.D.Cal.1999); In re Phillips, 233 B.R. 712, 716-717 (Bankr. W.D.Tx.1999). Although Rule 9024 makes Federal Rule of Civil Procedure" }, { "docid": "14711003", "title": "", "text": "held that this behavior was sufficient to toll the statutory limits and to allow the discharge to be revoked after the § 727(e)(2) deadlines had passed. The Court, however, elects not to follow the Trustee’s position and the reasoning in Sueca and Peebles. If it were to adopt the Trustee’s position, it would, in effect, be rewriting the Bankruptcy Code to “consume the rule set forth in § 727(e).” As noted by several other courts, reading the doctrine of equitable tolling into § 727(e) extinguishes the time limits within the statute, and appears to upset the decision already made by Congress because the statute itself is designed to account for the circumstances like the ones in this case. As in this case, application of § 727(d)(2) always involves discovering fraud after a debtor has received a discharge and the case has been closed. Nevertheless, the plain reading of § 727(e)(2) shows that Congress instituted these deadlines to bar precisely the type of action sought by the Trustee in this case, and there is no indication that Congress intended to toll those deadlines. Accordingly, based on the facts of this case, the Court rejects the Trustee’s request to toll the deadline in § 727(e)(2) and to revoke the Debtors’ discharge. While the Court recognizes that such a ruling may have the effect of protecting debtors that might not be “member[s] of the class of ‘honest but unfortunate debtor[s]’ that the bankruptcy laws were enacted to protect,” it is not the duty of this Court to rewrite the statute but to interpret it. The Court believes that there are other equitable remedies that are available to the Trustee besides revoking the Debtors’ discharge after the statutory deadlines have passed. V. CONCLUSION Based on the foregoing, the Court concludes that the case was properly closed pursuant to § 350(a), and equitable tolling does not apply to extend the deadlines in § 727(e). Therefore, the Trustee’s claims under § 727(d)(2) are time barred, and the Trustee’s request to revoke' the Debtors’ discharge is denied. Nevertheless, the Court concludes that the cause of action for" } ]

[ { "docid": "22818055", "title": "", "text": "beyond the general rule of prompt execution by the police. Moreover, the absence of any search within the apartment makes it unnecessary for us to consider whether or to what extent this kind of consent to entry for the purpose of arrest confers corollary authority to search the area controlled by the suspect at the time of arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The facts of this case also make it unnecessary to consider the police practice at the time of the arrest of not seeking arrest warrants on weekends. The District Court determined that this is no longer the practice. Instead arrest warrants are now sought on weekends from the recently appointed Magistrates. See Dorman v. United States, supra. The appellant has a privacy interest in the security of his person against unreasonable seizure which is different from the householder’s privacy interest in the security of his home against unreasonable search. As to this we agree with the District Court that in view of the circumstances his objection to a warrantless arrest is no more forceful than that of a person who objects to being arrested without a warrant in a public place. In Dorman, we approved the rule of Ford & Kimble, supra, that a warrant is not required for an arrest on probable cause in a public place. The Fourth Amendment is a protection for the right to be let alone, free from unreasonable official intrusion into a private sanctum whether that intrusion be in the form of a knock on the door at midnight or the monitoring of a telephone conversation in a public phone booth. See Katz v. United States, 389 U.S. 347, 350-351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is not a shield against the inevitable loss of privacy which accompanies one’s decision to go out into the world and mingle with his fellow man. A visitor in someone else’s home is not protected by the Fourth Amendment from the risk that the owner will consent to the entry of the police. When" } ]

[ { "docid": "8992114", "title": "", "text": "against unreasonable searches and seizures.’ ” United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008) (quoting U.S. Const, amend. IV). It also commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. “The security of one’s privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society.” Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). “[T]he Fourth Amendment protects people, not places,” and the Supreme Court of the United States has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a “constitutionally protected area.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The proper inquiry is whether the defendant had an expectation of privacy in the place searched and whether that expectation was objectively reasonable. See id. (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”); Katz v. United States, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring) (“My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”). There is no doubt, however, that a citizen has a reasonable expectation of privacy, and a particularly strong one, in his own home. The “chief evil” from which the Fourth Amendment protects citizens is unwanted police entry into the home, and the “principal protection” is “the Fourth Amendment’s warrant requirement.” United States" }, { "docid": "22870531", "title": "", "text": "belated claims during the course of the trial. Cf. United States v. Cobb (4th Cir. 1970) 432 F.2d 716, 718, n. 2; United States v. Blythe (4th Cir. 1963) 325 F.2d 96; United States v. Mauro (2d Cir. 1974) 507 F.2d 802, 807, cert. denied, 420 U.S. 991, 95 S.Ct. 1426, 43 L.Ed.2d 672 (1975). Even apart from the untimeliness of their claim, we are not persuaded on the record before us that Peterson, much less the codefendants, was entitled to the benefit of the trial court’s suppression ruling. Although the mother testified at the suppression hearing that one of the two bedrooms in the house — the one in which the questioned items were discovered — was used by her three sons, this testimony was the full extent of the testimony on the relationship of Stanley Peterson to the room searched. The motion to suppress was based solely on the alleged involuntariness of the consent given and not on any absence of authority to consent. For that matter, neither the mother nor appellant Peterson or his counsel ever contended that the mother had relinquished her control of the room or her ability to designate what use, if any, could be made of that room by Peterson. Such a record hardly justifies a finding of a want of authority in the mother to consent to a search of the bedroom as against her son. In reaching its conclusion, the District Court relied on our decision in Reeves v. Warden, Maryland Penitentiary (4th Cir. 1965) 346 F.2d 915. But Reeves established no strict rule that a mother may not under any circumstances consent to a search of a room in the family home occupied by her child, particularly when shared, as here, by other children in the family. Such determinations should be approached with great circumspection and made only upon a clearly defined record. Indeed, the facts of Reeves were quite different from those in this appeal. In Reeves, the home searched was that of a sister. Permission to search was given by the mother, who together with her son, occupied" }, { "docid": "22870553", "title": "", "text": "part of town both during and after the time of the actual robbery. Stanley’s role in the crime was confined to conspiring with his cohorts in the planning of the robbery and in aiding and abetting the commission of the crime by allowing his codefendants to use his home as a staging area before the robbery and as a sanctuary afterwards. The most damaging evidence of Peterson’s involvement came from the testimony of Jeffrey Heyer, Peterson’s former cellmate. Heyer testified that Peterson had boasted that $9,000 (the amount unrecovered from the robbery) was still safely hidden inside the house and that he would “walk at the preliminary” because he had arranged to be seen in various parts of town at the time of the robbery. According to Heyer, Peterson had also expressed dissatisfaction that some of his codefendants had entered through the front door of his home, rather than through the back door as originally planned. . United States v. Duke (4th Cir. 1969) 409 F.2d 669, 671, cert. denied 397 U.S. 1062, 90 S.Ct. 1497, 25 L.Ed.2d 683 (1970); United States v. Lester (6th Cir. 1966) 363 F.2d 68, 72, cert. denied 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967). . Peterson was sentenced to fifteen years’ imprisonment on the substantive count to run concurrently with a five year term imposed on the conspiracy count. . See, e. g., Nye & Nissen v. United States (1949) 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; United States v. McGowan (4th Cir. 1970) 423 F.2d 413; United States v. Clements (5th Cir. 1973) 484 F.2d 928, cert. denied 415 U.S. 991, 94 S.Ct. 1591, 39 L.Ed.2d 888; United States v. Jackson (10th Cir. 1973) 482 F.2d 1167, cert. denied 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111; United States v. Castro (9th Cir. 1973) 476 F.2d 750. . The agent intended to incorporate the substance of the memorandum into a written report of the investigation which had not been compiled at the time of trial. The report, apparently prepared after the interview, contained the agent’s version of" }, { "docid": "23220597", "title": "", "text": "personal, and may be enforced only by persons whose own protection under the Amendment has been violated. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978). To contest the validity of a search, a defendant must demonstrate that he himself exhibited an actual subjective expectation of privacy in the area searched, and that this subjective expectation is one that society is willing to accept as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). A defendant lacks “standing” in the Fourth Amendment context when his contacts with the searched premises are so attenuated that no expectation of privacy he has in those premises could ever be considered reasonable. See Rakas, 439 U.S. at 137-38, 99 S.Ct. at 427-28. Although the extent of a defendant’s property or possessory interest in the place searched is a factor generally considered in determining the reasonableness of a defendant’s expectation of privacy, United States v. Osorio, 949 F.2d 38, 40 (2d Cir.1991), a defendant’s lack of such an interest does not rule out the possibility that he may still show a reasonable expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85 (1990) (houseguest has legitimate expectation of privacy); Rakas, 439 U.S. at 143-144 n. 12, 99 S.Ct. at 430 n. 12. Residence may give rise to an expectation of privacy, United States v. Babwah, 972 F.2d 30, 35 (2d Cir.1992), but an individual may also have a “sufficient interest in a place other than his own home so that the Fourth Amendment protects him.” Rakas, 439 U.S. at 142, 99 S.Ct. at 430. For instance, where a guest has permission to use an apartment, is given a key, and uses the apartment in the owner’s absence, society may be prepared to recognize the guest’s privacy, even though no property interest exists. Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 730," }, { "docid": "22870559", "title": "", "text": "and to adopt as their own the testimony presented on behalf of Stanley Peterson. But none of this testimony established Peterson’s consent for them to use his home or, for that matter, that they were anything more than mere trespassers on the premises. Consequently, none of the codefendants, by virtue of their apparently wrongful presence, could claim the requisite standing at the time of the suppression hearing to have the merits of their motion adjudicated. Jones v. United States (1960) 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697. See also Mancusi v. DeForte (1968) 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154; Simmons v. United States (1968) 390 U.S. 377, 390, 88 S.Ct. 967, 19 L.Ed.2d 1247. Cf. United States v. Dye (6th Cir. 1974) 508 F.2d 1226, 1233. . Defense counsel exhibited a diagram of the Peterson residence for the purpose of illustrating Mrs. Peterson’s testimony and the following colloquy transpired (Trial Transcript at pp. 5-6): DEFENSE COUNSEL: Does this diagram on the right marked as Exhibit B represent accurately the upstairs of your residence? MRS. PETERSON: Yes. DEFENSE COUNSEL: Can you describe who uses Bedroom 1? MRS. PETERSON: Yes. That bedroom is used by my three boys, which is [sic] Stanley, Philip and Gary. DEFENSE COUNSEL: And Bedroom 2? MRS. PETERSON: It is occupied by myself. DEFENSE COUNSEL: And those are the only residents of that house? MRS. PETERSON: Right. . 346 F.2d at 924. . See also United States v. Mix (5th Cir. 1971) 446 F.2d 615; United States Ex Rel. Combs v. LaVallee (2nd Cir. 1969) 417 F.2d 523, 526, cert. denied 397 U.S. 1002, 90 S.Ct. 1150, 25 L.Ed.2d 413 (1970). . Matlock, supra, 415 U.S. at 177, n. 14, 94 S.Ct. át 996, left open the question answered in Sells of whether a third party consent search may be validated in a showing that “the searching officers reasonably believed that * * * [the consenting party] had sufficient authority over the premises to consent to the search.” Application of the exclusionary rule to the fruits of a search conducted under" }, { "docid": "22870539", "title": "", "text": "any aspect of the case to consent to a search of the room as against the rights of the codefendants as; her son’s “guests”, and we so hold. In any event, even if Mrs. Peterson were without authority to permit the search of the bedroom directed against the codefendants and the search was unconstitutional, we are convinced that the introduction of the seized items — the hat, shotgun and bait bill — was harmless beyond a reasonable doubt. Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705; Young v. State of Maryland (4th Cir. 1972) 455 F.2d 679, 680, cert. denied, 407 U.S. 915, 92 S.Ct. 2450, 32 L.Ed.2d 691 (1972); United States v. Simuel (4th Cir. 1971) 439 F.2d 687, 689, cert. denied, 404 U.S. 836, 92 S.Ct. 122, 30 L.Ed.2d 68 (1971). Although the hat, shotgun and bait bill seized as a result of that search arguably connected the codefendants to the crime, each of the defendants attempting to exclude the questioned articles was inextricably linked to his participation in the bank robbery by other, overwhelming evidence properly admitted at trial. United States v. Pravato (2d Cir. 1974) 505 F.2d 703, 704. As a corollary to the foregoing issues, Stanley Peterson contends that the broad deterrent purposes underlying the exclusionary rule fashioned in Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 and Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, reh. denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961), require that the evidence suppressed as to him should not have been used at all. In Alderman v. United States (1969) 394 U.S. 165, 171, 89 S.Ct. 961, 22 L.Ed.2d 176, reh. denied 394 U.S. 939, 89 S.Ct. 1177, 22 L.Ed.2d 475 (1969), the Court expressly rejected such an expansive reading of the rule to proscribe the use of illegally seized evidence in “all proceedings or against all persons.” The mere fact that evidence may be inadmissible against a defendant does not preclude its use against a codefendant if it" }, { "docid": "6349062", "title": "", "text": "previously obtaining a judicial order to that effect.” On the same day the district court opinion was rendered, July 22, 1974, the Superior Court of Puerto Rico entered an order directing the members of Villa Pangóla to evacuate the land and remove their structures. Land Authority of Puerto Rico v. Rivera, Civil No. 74-187. The squatters’ appeal from that order was dismissed without opinion by the Supreme Court of Puerto Rico on December 11, 1974. This appeal is not moot, however, because plaintiffs’ claim for damages is still outstanding. Despite some ambiguity, the district court opinion seems to us to involve two propositions. A careful reading clearly demonstrates that the court thought fourth amendment rights of the plaintiffs were being violated. It may be that the court barred eviction steps by the defendants prior to judicial authorization by analogy to the search warrant requirements of that amendment. The court also apparently thought that the due process clause of the fourteenth amendment barred eviction without prior judicial authorization. Under this theory if a homeless family moved into a vacant apartment in a state housing project, the state would be constitutionally barred from evicting by self-help. Whether these constructions of the Constitution withstand scrutiny are the questions we now turn to. We begin with the fourth amendment. Citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the court ruled that “the practice on the part of some of the defendants of looking into and poking through the homes of some of the plaintiffs without a search warrant or judicial authorization of any kind before ordering the bulldozers to destroy some of the unoccupied structures constitute[d] an invasion of privacy.” 378 F.Supp. at 744. We do not agree. “Katz teaches that Fourth Amendment protection extends only to situations in which the complaining person had a reasonable and legitimate expectation of privacy.” United States v. Missler, 414 F.2d 1293, 1301 (4th Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); accord, United States v. Clegg, 509 F.2d 605, 610 (5th Cir. 1975) (no" }, { "docid": "22870561", "title": "", "text": "the circumstances in this appeal would seem inappropriate. This is so because the rule is designed “to deter future unlawful police conduct” and not to repair the “personal constitutional right of the party aggrieved.” United States v. Calandra (1974) 414 U.S. 338, 347-48, 94 S.Ct. 613, 620. This deterrent function “necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. * * * Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.” Michigan v. Tucker (1974) 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182; cf., United States v. Peltier (1975) 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374; Brown v. State of Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (Powell, J., concurring). . Matlock, supra, 415 U.S. at 171, n. 7, 94 S.Ct. at 993. . 415 U.S. at 171, 94 S.Ct. 988. . The Fourth Amendment guarantee against unreasonable searches and seizures protects “people, not places” and extends only to what a person can reasonably expect to maintain as private. Katz v. United States (1967) 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576. Whatever expectations of privacy these codefendants may have acquired because Stanley Peterson granted them access to his mother’s home generally, we are not prepared to say that such expectations are ones that “society is prepared to recognize as ‘reasonable’.” Katz, supra, 389 U.S. at 361, 88 S.Ct. at 516, Harlan, J., concurring. Even according them the status of guests, Mrs. Peterson’s interest in the integrity of the premises was clearly superior to any privacy interest held by the codefendants. See United States v. Missler (4th Cir. 1969) 414 F.2d 1293, 1301-2, cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); Bowles v. United States (1970) 142 U.S.App.D.C. 26, 439 F.2d 536, 540-1, cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); Calhoun v. United States (5th Cir. 1949) 172 F.2d 457, 458. As a practical matter," }, { "docid": "22870528", "title": "", "text": "“totality of all the surrounding circumstances” and is binding on us unless clearly erroneous. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854. Manifestly, the mere presence of police officers in the Peterson home, absent any indication of coercive words or acts on their part, is insufficient to raise an inference that Mrs. Peterson’s consent was an unwitting and unwilling submission to police authority. United States v. Vickers (4th Cir. 1967) 387 F.2d 703, 706-7; United States v. Savage (5th Cir. 1972) 459 F.2d 60, 61, vacated on other grounds (5th Cir. 1973), 483 F.2d 67; United States v. Stone (7th Cir. 1972) 471 F.2d 170, 173, cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973). She found her home occupied, without explanation, by four strangers suspected of a nearby bank robbery. Despite the presence of the officers, she was in the familiar surroundings of her own home and in the company of her own family. She was specifically informed of her right to withhold her consent before signing the proffered consent form, and, in fact, partially exercised that right by in effect refusing to permit a search of her own bedroom. Not only was the District Court’s finding not clearly erroneous, it was supported by the overwhelming evidence in the case. Peterson’s codefendants alternatively press the claim that they are entitled to assert the same right of privileged privacy as Stanley Peterson was held by the District Court to have in connection with the search of the bedroom used by him and his two brothers in the mother’s home and that Mrs. Peterson’s consent to the search of that room was no more valid as against them than as against her son. This claim, however, was not advanced until trial and only after the items discovered as a result of the search had been received in evidence. These defendants would justify their delay in asserting the claim because, as they argue, the claim did not have a basis in the record until Stanley Peterson’s role in the robbery had been" }, { "docid": "22870529", "title": "", "text": "consent before signing the proffered consent form, and, in fact, partially exercised that right by in effect refusing to permit a search of her own bedroom. Not only was the District Court’s finding not clearly erroneous, it was supported by the overwhelming evidence in the case. Peterson’s codefendants alternatively press the claim that they are entitled to assert the same right of privileged privacy as Stanley Peterson was held by the District Court to have in connection with the search of the bedroom used by him and his two brothers in the mother’s home and that Mrs. Peterson’s consent to the search of that room was no more valid as against them than as against her son. This claim, however, was not advanced until trial and only after the items discovered as a result of the search had been received in evidence. These defendants would justify their delay in asserting the claim because, as they argue, the claim did not have a basis in the record until Stanley Peterson’s role in the robbery had been developed by a Government witness and until it was testified that Peterson had given them permission to be in his mother’s house. However, they knew from the outset, and particularly at the pretrial suppression hearing, that Stanley Peterson had given them permission to be in the Peterson residence. They could have testified at the suppression hearing to the circumstances under which they were present in the Peterson home without in any way compromising their rights to remain silent at trial and without any fear that their testimony would be used against them. Simmons v. United States, supra, 390 U.S. at 389-90, 88 S.Ct. 967. Under these circumstances, we think it was their obligation under Rule 41(e) to make their derivative claim of constitutional privacy before trial. Having been afforded a full opportunity at their own request to present any and all grounds which might have arguably justified the suppression of the questioned evidence, the District Court (had it chosen to do so) would have been acting well within its discretion in refusing to entertain their" }, { "docid": "22870552", "title": "", "text": "Cf. Glasser v. United States (1942) 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Sherman (4th Cir. 1970) 421 F.2d 198, cert. denied 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970). . At about 7:30 that morning, five or six persons — one dressed in a white coat and a black hat, and one in a guard’s uniform — were observed entering the Peterson home by a neighbor who identified photographs of the two cars used in the bank robbery. Butler’s testimony, as well as the testimony of Philip Peterson, Stanley’s brother who was home at the time of the defendants’ arrival, established that Stanley Peterson met the appellants at the door and admitted them. Philip Peterson testified that he was so frightened by the appearance of the strangers that he immediately fled the premises. . It was never the Government’s contention that Stanley Peterson was one of the four male robbers. In fact, the testimony of Officer Washington, an Alexandria police officer, established that Peterson was in another part of town both during and after the time of the actual robbery. Stanley’s role in the crime was confined to conspiring with his cohorts in the planning of the robbery and in aiding and abetting the commission of the crime by allowing his codefendants to use his home as a staging area before the robbery and as a sanctuary afterwards. The most damaging evidence of Peterson’s involvement came from the testimony of Jeffrey Heyer, Peterson’s former cellmate. Heyer testified that Peterson had boasted that $9,000 (the amount unrecovered from the robbery) was still safely hidden inside the house and that he would “walk at the preliminary” because he had arranged to be seen in various parts of town at the time of the robbery. According to Heyer, Peterson had also expressed dissatisfaction that some of his codefendants had entered through the front door of his home, rather than through the back door as originally planned. . United States v. Duke (4th Cir. 1969) 409 F.2d 669, 671, cert. denied 397 U.S. 1062, 90 S.Ct." }, { "docid": "22980635", "title": "", "text": "had authority to permit inspection of this room. United States v. Peterson, 524 F.2d 167 (4th Cir. 1975). Put in terms of the controlling principles above summarized, she shared access to the room, as room, under circumstances that made it reasonable for the police to believe that she had a right to permit its inspection, and that her son must have assumed the risk that she would do so. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Peterson, 524 F.2d 167 (4th Cir. 1975) . As plain as this appears, it is equally plain that, within these principles, her authority did not extend to the interior of the footlocker within the room; and that of course is the decisive point here. While authority to consent to search of a general area must obviously extend to most objects in plain view within the area, it cannot be thought automatically to extend to the interiors of every discrete enclosed space capable of search within the area. The decided cases indicate precisely the contrary: that each such enclosed space stands on its own bottom for this purpose. See, e. g., United States v. Wilson, 536 F.2d 883 (9th Cir. 1976) (suitcase in consenter’s apartment); Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955) (cabinets in consenter’s home); United States v. Blok, 188 F.2d 1019 (D.C. Cir. 1951) (employee’s desk in consenter’s office suite). See also United States v. Poole, 307 F.Supp. 1185 (E.D.La.1969) (overnight bag in consenter’s apartment closet; consent ineffective although given in victim’s presence). This is as it must be for the protection of one of the primary objects of people’s ordinary expectations of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Common experience of life, clearly a factor in assessing the existence and the reasonableness of privacy expectations, surely teaches all of us that the law’s “enclosed spaces” — mankind’s valises, suitcases, footlockers, strong boxes, etc.— are frequently the objects of his highest privacy expectations, and that the expectations may well be at" }, { "docid": "22870527", "title": "", "text": "but, rather, argued that her consent, given after the police officers had arrived at her home, was involuntary. Following an evidentiary hearing held pursuant to Rule 41(e), in which Peterson’s codefendants failed to establish the legitimacy of their presence on the Peterson premises, the District Court found that Mrs. Peterson’s consent had been freely and voluntarily given. On its own motion, however, the District Court concluded that the bedroom in which some of the contested items had been discovered was “set apart” for the use of defendant Peterson and that his mother was without authority to consent to a search of such room as against the rights of her son. It accordingly ruled that the evidence taken in the search of the bedroom was inadmissible against Stanley Peterson. On appeal the appellants redouble their efforts in an attempt to persuade us that the District Court erred in finding that Mrs. Peterson’s consent was freely and voluntarily given. This, however, is a factual question, to be determined by the trier of fact in light of the “totality of all the surrounding circumstances” and is binding on us unless clearly erroneous. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854. Manifestly, the mere presence of police officers in the Peterson home, absent any indication of coercive words or acts on their part, is insufficient to raise an inference that Mrs. Peterson’s consent was an unwitting and unwilling submission to police authority. United States v. Vickers (4th Cir. 1967) 387 F.2d 703, 706-7; United States v. Savage (5th Cir. 1972) 459 F.2d 60, 61, vacated on other grounds (5th Cir. 1973), 483 F.2d 67; United States v. Stone (7th Cir. 1972) 471 F.2d 170, 173, cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973). She found her home occupied, without explanation, by four strangers suspected of a nearby bank robbery. Despite the presence of the officers, she was in the familiar surroundings of her own home and in the company of her own family. She was specifically informed of her right to withhold her" }, { "docid": "22870563", "title": "", "text": "the codefendants viewed Peterson’s bedroom no differently from the other areas of the house for which Mrs. Peterson in any view had unquestioned authority to consent to a police search. In making use of the Peterson home, we think, too, they assumed the risk that Mrs. Peterson might voluntarily consent to a search of the home directed against them. . Without attempting to catalogue all of the incriminating evidence properly introduced against these defendants, we would point generally to the testimony of Nina Butler as establishing their roles in the conspiracy and robbery. Additionally, Linda Smith and Paul Coates were positively identified as the thieves who stole the car used in the robbery and later abandoned at the bank. Eric Smith was positively identified as the robber wearing the gray hat by two eye-witnesses. Linda Smith’s license tags were on the stolen getaway car parked behind the Peterson house. In the common areas of the Peterson home, the police found the disguises worn by the bank robbers, the bank money bags, the pillow cases used to transport the stolen loot, and over $160 in bank monies. . United States v. Calandra, supra, 414 U.S. at 348, 94 S.Ct. at 920. . United States v. Calandra, supra, 414 U.S. at 348, 94 S.Ct. at 620. . See note 6, supra. . See Opper v. United States (1954) 348 U.S. 84, 94-5, 75 S.Ct. 158, 99 L.Ed. 101; United States v. Frazier (4th Cir. 1968) 394 F.2d 258, 260-62, cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968); Oden v. United States (5th Cir. 1969) 410 F.2d 103, 104, cert. denied, 396 U.S. 863, 90 S.Ct. 138, 24 L.Ed.2d 116 (1969); United States v. Kahn (2d Cir. 1966) 366 F.2d 259, 263, cert. denied, 385 U.S. 948, 87 S.Ct. 321, 17 L.Ed.2d 226 (1966), reh. denied, 385 U.S. 984, 87 S.Ct. 502, 17 L.Ed.2d 445; Rizzo v. United States (8th Cir. 1962) 304 F.2d 810, 818, cert. denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962). Accordingly, Peterson’s contention that the trial court abused its discretion in" }, { "docid": "22870562", "title": "", "text": "protects “people, not places” and extends only to what a person can reasonably expect to maintain as private. Katz v. United States (1967) 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576. Whatever expectations of privacy these codefendants may have acquired because Stanley Peterson granted them access to his mother’s home generally, we are not prepared to say that such expectations are ones that “society is prepared to recognize as ‘reasonable’.” Katz, supra, 389 U.S. at 361, 88 S.Ct. at 516, Harlan, J., concurring. Even according them the status of guests, Mrs. Peterson’s interest in the integrity of the premises was clearly superior to any privacy interest held by the codefendants. See United States v. Missler (4th Cir. 1969) 414 F.2d 1293, 1301-2, cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); Bowles v. United States (1970) 142 U.S.App.D.C. 26, 439 F.2d 536, 540-1, cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); Calhoun v. United States (5th Cir. 1949) 172 F.2d 457, 458. As a practical matter, the codefendants viewed Peterson’s bedroom no differently from the other areas of the house for which Mrs. Peterson in any view had unquestioned authority to consent to a police search. In making use of the Peterson home, we think, too, they assumed the risk that Mrs. Peterson might voluntarily consent to a search of the home directed against them. . Without attempting to catalogue all of the incriminating evidence properly introduced against these defendants, we would point generally to the testimony of Nina Butler as establishing their roles in the conspiracy and robbery. Additionally, Linda Smith and Paul Coates were positively identified as the thieves who stole the car used in the robbery and later abandoned at the bank. Eric Smith was positively identified as the robber wearing the gray hat by two eye-witnesses. Linda Smith’s license tags were on the stolen getaway car parked behind the Peterson house. In the common areas of the Peterson home, the police found the disguises worn by the bank robbers, the bank money bags, the pillow cases used" }, { "docid": "22870538", "title": "", "text": "the conclusion that the searching officers acted in perfect good faith in relying on the authority exercised by the mother, and affirmed by the sister, to consent to the search. At the very least, Mrs. Peterson possessed “the necessary appearance of authority demanded by MatlocU’ to validate a search based on her consent. United States v. Sells (7th Cir. 1974) 496 F.2d 912, 914. Given the na ture of the home as a family dwelling and the fact that the mother, as owner and head of the single-family household, designated what use, if any, could be made of the premises including the bedroom in question, we think it was “reasonable to recognize” that the mother had the authority “to permit the inspection in * * * [her] own right.” Despite the fact that Stanley Peterson was one of the members of the family using the bedroom, Mrs. Peterson’s access and control over the entire premises, as well as her substantial interest in or “sufficient [other] relationship to” the premises, vested her with sufficient authority under any aspect of the case to consent to a search of the room as against the rights of the codefendants as; her son’s “guests”, and we so hold. In any event, even if Mrs. Peterson were without authority to permit the search of the bedroom directed against the codefendants and the search was unconstitutional, we are convinced that the introduction of the seized items — the hat, shotgun and bait bill — was harmless beyond a reasonable doubt. Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705; Young v. State of Maryland (4th Cir. 1972) 455 F.2d 679, 680, cert. denied, 407 U.S. 915, 92 S.Ct. 2450, 32 L.Ed.2d 691 (1972); United States v. Simuel (4th Cir. 1971) 439 F.2d 687, 689, cert. denied, 404 U.S. 836, 92 S.Ct. 122, 30 L.Ed.2d 68 (1971). Although the hat, shotgun and bait bill seized as a result of that search arguably connected the codefendants to the crime, each of the defendants attempting to exclude the questioned articles was inextricably linked to his" }, { "docid": "6349063", "title": "", "text": "into a vacant apartment in a state housing project, the state would be constitutionally barred from evicting by self-help. Whether these constructions of the Constitution withstand scrutiny are the questions we now turn to. We begin with the fourth amendment. Citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the court ruled that “the practice on the part of some of the defendants of looking into and poking through the homes of some of the plaintiffs without a search warrant or judicial authorization of any kind before ordering the bulldozers to destroy some of the unoccupied structures constitute[d] an invasion of privacy.” 378 F.Supp. at 744. We do not agree. “Katz teaches that Fourth Amendment protection extends only to situations in which the complaining person had a reasonable and legitimate expectation of privacy.” United States v. Missler, 414 F.2d 1293, 1301 (4th Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); accord, United States v. Clegg, 509 F.2d 605, 610 (5th Cir. 1975) (no reasonable expectation that placement of telephone call or particular number called will not be recorded); United States v. Hunt, 505 F.2d 931, 937 (5th Cir. 1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (U.S. May 19, 1975); United States v. Continental Bank & Trust Co., 503 F.2d 45, 49 (10th Cir. 1974) (IRS subpoena of bank records); Shaffer v. Field, 484 F.2d 1196 (9th Cir. 1973). Thus we must determine whether these plaintiffs had “a reasonable expectation of freedom from governmental intrusion.” Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968). Nothing in the record suggests that the squatters’ entry upon the land was sanctioned in any way by the Commonwealth. The plaintiffs knew they had no colorable claim to occupy the land; in fact, they had been asked twice by Commonwealth officials to depart voluntarily. That fact alone makes ludicrous any claim that they had a reasonable expectation of privacy. The outcome in the eviction action in the Superior Court of Puerto Rico is" }, { "docid": "22870525", "title": "", "text": "contends that he was denied effective representation of counsel at trial because his attorney, relying on Government representations that the case against him might be dismissed if witness Nina Butler were not located, delayed trial preparations until shortly before trial when the witness was found. Although counsel, appointed approximately seven weeks prior to trial, was afforded more than a reasonable opportunity to prepare Irby’s defense, we are concerned here with the effect rather than the fault of the delay. Coles v. Peyton (4th Cir. 1968) 389 F.2d 224, 226, cert. denied 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). Notwithstanding counsel’s delay, we are convinced that Irby was adequately represented at trial. Counsel had been provided complete access to the Government’s file. He was familiar with the Government’s case against Irby, the substance of each witness’s proposed testimony, and, at trial, thoroughly cross-examined them. He had conferred sufficiently with Irby to elicit from him matters essential to establishing an alibi defense which was, although ultimately discounted by the jury, fully and adequately presented at trial. At the beginning of the trial, counsel suggested to the Court that he had been forced to prepare for trial in a too-limited amount of time. The District Judge immediately offered Irby a continuance if counsel were unprepared to proceed but counsel, after conferring with Irby, declined the offer. Indeed, no argument is advanced that, if the offer of a continuance had been accepted or extended preparation time provided, trial counsel would or could have pursued a different trial strategy or defense. Under these circumstances, we are persuaded that, despite counsel’s delay in beginning his trial preparations, Irby was not denied effective assistance of counsel. The primary attack by the defendants in this appeal relates to the validity of the police search of the Peterson premises. Stanley Peterson and his codefendants Linda Smith, Eric Smith and Paul Coates joined in a pretrial motion to suppress all of the physical evidence found as a result of that search. They made no contention that Mrs. Peterson lacked the requisite authority to consent to the search" }, { "docid": "22870530", "title": "", "text": "developed by a Government witness and until it was testified that Peterson had given them permission to be in his mother’s house. However, they knew from the outset, and particularly at the pretrial suppression hearing, that Stanley Peterson had given them permission to be in the Peterson residence. They could have testified at the suppression hearing to the circumstances under which they were present in the Peterson home without in any way compromising their rights to remain silent at trial and without any fear that their testimony would be used against them. Simmons v. United States, supra, 390 U.S. at 389-90, 88 S.Ct. 967. Under these circumstances, we think it was their obligation under Rule 41(e) to make their derivative claim of constitutional privacy before trial. Having been afforded a full opportunity at their own request to present any and all grounds which might have arguably justified the suppression of the questioned evidence, the District Court (had it chosen to do so) would have been acting well within its discretion in refusing to entertain their belated claims during the course of the trial. Cf. United States v. Cobb (4th Cir. 1970) 432 F.2d 716, 718, n. 2; United States v. Blythe (4th Cir. 1963) 325 F.2d 96; United States v. Mauro (2d Cir. 1974) 507 F.2d 802, 807, cert. denied, 420 U.S. 991, 95 S.Ct. 1426, 43 L.Ed.2d 672 (1975). Even apart from the untimeliness of their claim, we are not persuaded on the record before us that Peterson, much less the codefendants, was entitled to the benefit of the trial court’s suppression ruling. Although the mother testified at the suppression hearing that one of the two bedrooms in the house — the one in which the questioned items were discovered — was used by her three sons, this testimony was the full extent of the testimony on the relationship of Stanley Peterson to the room searched. The motion to suppress was based solely on the alleged involuntariness of the consent given and not on any absence of authority to consent. For that matter, neither the mother nor appellant Peterson" }, { "docid": "22870560", "title": "", "text": "the upstairs of your residence? MRS. PETERSON: Yes. DEFENSE COUNSEL: Can you describe who uses Bedroom 1? MRS. PETERSON: Yes. That bedroom is used by my three boys, which is [sic] Stanley, Philip and Gary. DEFENSE COUNSEL: And Bedroom 2? MRS. PETERSON: It is occupied by myself. DEFENSE COUNSEL: And those are the only residents of that house? MRS. PETERSON: Right. . 346 F.2d at 924. . See also United States v. Mix (5th Cir. 1971) 446 F.2d 615; United States Ex Rel. Combs v. LaVallee (2nd Cir. 1969) 417 F.2d 523, 526, cert. denied 397 U.S. 1002, 90 S.Ct. 1150, 25 L.Ed.2d 413 (1970). . Matlock, supra, 415 U.S. at 177, n. 14, 94 S.Ct. át 996, left open the question answered in Sells of whether a third party consent search may be validated in a showing that “the searching officers reasonably believed that * * * [the consenting party] had sufficient authority over the premises to consent to the search.” Application of the exclusionary rule to the fruits of a search conducted under the circumstances in this appeal would seem inappropriate. This is so because the rule is designed “to deter future unlawful police conduct” and not to repair the “personal constitutional right of the party aggrieved.” United States v. Calandra (1974) 414 U.S. 338, 347-48, 94 S.Ct. 613, 620. This deterrent function “necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. * * * Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.” Michigan v. Tucker (1974) 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182; cf., United States v. Peltier (1975) 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374; Brown v. State of Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (Powell, J., concurring). . Matlock, supra, 415 U.S. at 171, n. 7, 94 S.Ct. at 993. . 415 U.S. at 171, 94 S.Ct. 988. . The Fourth Amendment guarantee against unreasonable searches and seizures" } ]

[ { "docid": "16659710", "title": "", "text": "the Internal Revenue Code. In United States v. Garrett, 583 F.2d 1381 (5th Cir.1978), we held that a violation of § 5861(e) was established where a firearm was transferred either (1) without the payment of the transfer tax required by 26 U.S.C. § 5811, or (2) without the filing of a transfer application in conformity with 26 U.S.C. § 5812. See id. at 1388. We did not interpret § 5861(e) to require a showing that the weapon in question could have been registered or issued a serial number. In summary, we are not aware of any cases which hold that registrability is an essential element of any of the offenses of which Thomas was convicted. Neither does Thomas offer any authority for his claim that the government was required to prove regis-trability. Thomas merely states that “his conviction is based on insufficient evidence as to the issue of whether the devices in question are in fact registerable, [and] as United States v. Daniels, [973 F.2d 272 (4th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 1064, 122 L.Ed.2d 369 (1993) ] points out, this is an essential element of the offense of which he was charged.” Contrary to this assertion, Daniels provides no support for the proposition that the government must prove that pipe bombs are registerable \"with the ATF to convict a defendant for their possession and transfer. Daniels holds that the essential elements of a violation of 26 U.S.C. § 5861(e) are (1) the knowing transfer; (2) of a firearm; (3) in violation of the provisions of Chapter 53 of Title 26. Id. at 275. Daniels does not address the registration and serial number requirements at issue here, and certainly does not hold that regis-trability is an essential element of any of the offenses of which Thomas was convicted. We therefore are not persuaded that regis-trability is an essential element of any of the offenses of which Thomas was convicted, and his sufficiency argument fails. Ill For the foregoing reasons, we AFFIRM. . The district court sentenced Thomas to 63 months imprisonment. . Cf. United States v. Dalton, 960" } ]

[ { "docid": "11393452", "title": "", "text": "irreconcilable. Id. at 183 (quoting Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974)). But 18 U.S.C. § 922(o), prohibiting post-1986 maehineguns, can be reconciled with § 5861. Citing Minor v. United States, 396 U.S. 87, 96-97, 90 S.Ct. 284, 288-89, 24 L.Ed.2d 283 (1969), for the proposition that Congress can tax illegal conduct such as the sale of narcotics, the court concluded that the prohibition of post-1986 maehineguns does not mean that Congress cannot tax them. Although it is illegal to possess or manufacture these weapons, one illegally doing so would be required to register them with ATF and pay taxes on them. And if ATF refuses to allow registration or the payment of taxes, one can comply with § 5861(d) by not violating § 922(o), i.e., by not possessing or manufacturing any post-1986 maehineguns. Jones, 976 F.2d at 183 (citing Minor). , Thus, the Jones court rejected the Tenth Circuit’s view that compliance with § 5861 was impossible and therefore that the statute was implicitly repealed. Jones dealt with the taxing authority argument in two ways. First, ATF has the authority to tax now-illegal maehineguns. Although it chooses not to allow tax payments or registration, it still has the authority to do so. Thus, the basis for ATF’s authority to regulate — the taxing power — still exists; it is merely not exercised. Second, the court noted that although the NFA was originally upheld under Congress’s taxing power, no one could seriously contend that the regulation of maehineguns could not also be upheld under Congress’s power to regulate interstate commerce. We adopt the analysis of the Fourth Circuit. The NFA can be upheld on the preserved, but unused, power to tax or on the power to regulate interstate commerce. Since the provisions of the NFA can be reconciled with the FOPA, the doctrine of implicit repeal must be rejected. III. Ardoin next challenges the constitutionality of his conviction for “making” a firearm, as the Supreme Court has recently held that the term “making” is ambiguous. We review this legal issue de novo." }, { "docid": "12398980", "title": "", "text": "§ 5861(d) have been held unconstitutional, under circumstances similar to the instant ease. See, e.g., United States v. Dalton, 960 F.2d 121 (10th Cir.1992); United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.I11.1991). These two courts held that a conviction for possession of an unregistered maehinegun, in violation of § 5861(d), would violate due process because the enactment of another statute, 18 U.S.C. § 922(o), made registration of the firearms impossible. Likewise, they held that a statute enacted under the taxing power, to facilitate the enforcement and collection of the tax, loses its constitutional foundation when the object of the tax is prohibited. See Dalton, 960 F.2d at 125; Rock Island Armory, 773 F.Supp. at 125. Accordingly, the two courts concluded, it would violate due process to convict a defendant for violations of a statute when compliance with it is legally impossible. This court rejected the same claim in United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994), holding that the enactment of § 922(o) did not absolve maehinegun owners of their obligation to register such weapons and pay the tax as required by the NFA, nor did it immunize them from criminal prosecution if they failed to comply with the statute. Id. at 180. Furthermore, we held that prosecutions under § 5861(d) are constitutional, despite the fact that it is legally impossible to register machineguns in the wake of § 922(o). Id. Hence, we held that such prosecutions do not offend due process. The Ardoin court based its conclusions on two fundamental premises that apply with equal force in the instant ease. First, the court noted that Congress may tax illegal activity. Consequently, although § 922(o) prohibits the transfer and possession of machineguns not legally possessed prior to 1986, Congress may still tax the illegal possession of such machineguns and may still assess criminal penalties for failure to comply with the registration requirements promulgated to enforce the tax. Id. Insofar as the basis for the authority to regulate compliance with the registration requirements—the taxing authority—still exists, the Ardoin court held that the registration requirements are constitutional" }, { "docid": "12398984", "title": "", "text": "bomb and thereby comply with the NFA, he could avoid prosecution by not engaging in the illegal activity. If Gresham chose to build an illegal pipe bomb and violate the law, therefore, he cannot subsequently complain that his prosecution for a violation of § 5861(d) offends the Due Process Clause. There is nothing “fundamentally unfair” about punishing a criminal, whether directly or indirectly, for engaging in illegal activity. Cf. Ardoin, 19 F.3d at 180 n. 4. III. Gresham next argues that the district court erred in denying his motion to dismiss count two of the indictment, charging possession of a firearm by a convicted felon in violation of § 922(g)(1), because that statute is unconstitutional. Citing United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Gresham claims the statute exceeds Congress’s authority to regulate interstate commerce. Furthermore, he argues that the indictment charging him with violations of § 922(g)(1) was defective in that it failed to charge every element of the offense. Neither claim has merit. A. The constitutionality of § 922(g)(1) is not open to question. In United States v. Rawls, 85 F.3d 240 (5th Cir.1996), we held that “neither the holding in Lopez nor the reasons given therefor constitutionally invalidate § 922(g)(1).” Id. at 242. Accordingly, Gresham’s constitutional challenge is foreclosed by circuit precedent. B. Likewise, Rawls defeats Gresham’s challenge to the indictment. Arguing that Lopez permits the United States to regulate intrastate activities only if they “substantially affect” interstate commerce, Gresham claims that the indictment was defective because it charged him with possessing a firearm “in or affecting interstate commerce,” omitting the constitutional requirement of a “substantial effect.” Therefore, Gresham concludes, the indictment did not charge every essential element of the offense, and must be dismissed. Not so. In Rawls, we recognized that the “in or affecting commerce” element of § 922(g)(1) may be satisfied if the firearm possessed by a convicted felon had traveled in interstate commerce. See Rawls, 85 F.3d at 242-43. Citing Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), we further concluded" }, { "docid": "22087794", "title": "", "text": "(11th Cir.1989)). III. DISCUSSION Our discussion is divided in four parts. First, we address Spoerke’s challenge to the constitutionality of the National Firearms Act. Next, we discuss the sufficiency of the evidence to sustain the finding that Spoerke’s devices were destructive devices within the meaning of the Act. We then discuss Spoerke’s remaining challenges to his convictions. Finally, we address Spoerke’s challenges to his sentence. A. The National Firearms Act Is Constitutional. Spoerke argues that the district court erred when it denied his motion to dismiss his indictment because the National Firearms Act is unconstitutional. Spoerke argues that the Act is both facially unconstitutional and unconstitutional as applied to him. The district court rejected both arguments, and so do we. The National Firearms Act is facially constitutional. The Act, 26 U.S.C. §§ 5801 et seq. , regulates firearms, including “destructive device[s],” id. § 5845(a)(8), and requires the taxation and registration of firearms by manufacturers, possessors, transferors, dealers, importers, and sellers. See United States v. Aiken, 974 F.2d 446, 447 (4th Cir.1992). The Supreme Court has, upheld the Act based on the taxation power of Congress, Sonzinsky v. United States, 300 U.S. 506, 514, 57 S.Ct. 554, 556, 81 L.Ed. 772 (1937), and we have upheld the Act in a decision involving a “destructive device.” United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972). “Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.” Id.; see also United States v. Gresham, 118 F.3d 258, 262 (5th Cir.1997) (“[I]t is well-settled that [the Firearms Act] is constitutional because it is ‘part of the web of regulation aiding enforcement of the transfer tax provision in [the Act].’ ” (quoting Ross, 458 F.2d at 1145)). Spoerke’s argument that the Act is unconstitutional as applied to him because pipe bombs are unlawful and cannot be taxed fails.- “[T]he unlawfulness of an activity does not prevent its taxation.” Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994). “A statute does not cease to be a valid tax measure because" }, { "docid": "12398998", "title": "", "text": "effective date of the statute. Because possession of machineguns manufactured or transferred after that date is illegal, their registration is legally impossible. See' 26 U.S.C. § 5812, 5822. . We declined to follow Dalton and Rock Island Armory in reaching our decision in Ardoin. See Ardoin, 19 F.3d at 179-80. Furthermore, the majority of courts addressing this question have agreed with our disposition, declining to follow Dalton and Rock Island Armory. See Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir. 1996); United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995); United States v. Ross, 9 F.3d 1182, 1192-94 (7th Cir. 1993), vacated on other grounds, 511 U.S. 1124, 114 S.Ct. 2129, 128 L.Ed.2d 860 (1994); United States v. Jones, 976 F.2d 176, 182-84 (4th Cir.1992). . Gresham attempts to distinguish Ardoin by claiming that the only issue in Ardoin was whether the enactment of § 922(o ) had implicitly repealed portions of the NFA. This distinction is superficial and unpersuasive, however, as the theory of implicit repeal considered in Ardoin was based on the argument that the ban on machineguns rendered the registration requirements and criminal penalties of the NFA unconstitutional. Ardoin, 19 F.3d at 179. Therefore, Ardoin necessarily decided the constitutional issue as a prerequisite to rejecting the theory of implicit repeal. Id. . The authority of Congress to tax illegal activity is firmly established. See, e.g., Department of Revenue v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994); Marchetti v. United States, 390 U.S. 39, 44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968). . See also United States v. Thomas, 15 F.3d 381, 382-83 (5th Cir. 1994) (affirming the denial of a motion for acquittal under § 5861(d) because defendant failed to demonstrate that pipe bombs cannot be registered). . Gresham offers no authority to support the proposition that registration of a pipe bomb is legally impossible, but he contends that registration of a pipe bomb is impossible as a practical matter. However true that may be, it does not undermine the constitutional basis of the statute. To" }, { "docid": "11393449", "title": "", "text": "filed a Form 1 instead of a Form 10 and should have paid a making tax. Ar-doin responded that the Welsh Police Department had authorized him to receive the weapons and that he was a commissioned officer acting on the department’s behalf. Furthermore, ATF had sent out a circular stating that it would no longer accept Form l’s and that the guns were tax-exempt, since they were made for a government agency. Ardoin was unable to obtain a copy of the ATF circular, and ATF agent Paul Rash testified that no such circular existed. A jury found Ardoin guilty on all twelve counts. He moved for a new trial after obtaining a copy of the ATF circular. The motion for new trial was denied. The sentencing court adopted the factual findings contained in the presentence investigation report (“PSR”), which recommended a range of forty-six to fifty-seven months’ imprisonment. Ardoin was sentenced to forty-six months on each of the twelve counts, to run concurrently. II. This case presents a novel constitutional issue in this circuit: whether § 102(9) of the Firearms Owners’ Protection Act of 1986 (“FOPA”), 18 U.S.C. § 922(o), which amended the Gun Control Act of 1968 by making possession of machineguns illegal, implicitly repealed portions of the NFA. We review such legal questions de novo. United States v. Guajardo, 950 F.2d 203, 206 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992). Ardoin argues that 26 U.S.C. §§ 5821, 5861(d), (e), (f), (l), 5871, and 5845 are unconstitutional because they were originally based upon Congress’s taxing power. He reasons that since individuals may not possess ma-chineguns manufactured after May 19, 1986, and ATF refuses to accept applications to register or to pay the tax on such weapons, the constitutional authority for provisions of the NFA dealing with the registration and taxing of post-1986 machineguns is gone. Consequently, criminal liability imposed under the NFA for failure to comply with these provisions has also been repealed. Ardoin cites United States v. Rock Island Armory, 773 F.Supp. 117 (C.D.Ill.1991), and United States v. Dalton, 960 F.2d" }, { "docid": "12398978", "title": "", "text": "charges that Congress has used the taxation power as a pretext to prohibit the possession of certain disfavored weapons, without any rational relationship to the revenue-raising purposes of the Internal Revenue Code. Therefore, Gresham claims that the NFA confers a police power on the United States, antithetical to the enumerated powers granted in the Constitution. To the contrary, it is well-settled that § 5861(d) is constitutional because it is “part of the web of regulation aiding enforcement of the transfer tax provision in § 5811. Having required payment of a transfer tax and registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.” United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972). Insofar as the statute is a valid exercise of the taxing power, the fact that it incidentally accomplishes goals other than raising revenue does not undermine its constitutionality. “[T]he motives that move Congress to impose a tax are no concern of the courts.” Id. at 1146. The facial constitutionality of 26 U.S.C. § 5861(d) is firmly established, and we need not reconsider it. B. Notwithstanding the statute’s facial constitutionality, Gresham claims that his conviction violates the due process clause and belies the constitutional foundation of § 5861(d), because it was legally impossible for him to register the pipe bomb and thus comply with the requirements of the NFA. We disagree. The NFA forbids the manufacture or transfer of any firearm without the government’s advance permission. Permission shall be denied if the making, transfer or possession of the firearm would place the transferee in violation of the law. See 26 U.S.C. §§ 5812, 5822. If permission is not obtained, the registration requirement cannot be satisfied. See 26 U.S.C. § 5841(c). Consequently, Gresham complains that the NFA permits the government to deny registration, yet permits prosecution for possession of an unreg- istered firearm. This dilemma, he contends, violates the due process clause and belies the constitutional foundation of the statute. In support of this argument, Gresham cites two cases in which convictions obtained pursuant to" }, { "docid": "12399000", "title": "", "text": "the contrary, if possession of pipe bombs is not illegal per se, the registration requirement is reasonably related to the revenue purposes of the act and does not impose an unreasonable dilemma on Gresham. We express no opinion as to whether the prohibition against possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), would have been sufficient to render the registration of the pipe bomb legally impossible in this case, as Gresham does not suggest this alternative ground for our consideration. See United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995) (holding that the prohibition against possession of a firearm by a convicted felon does not render registration of such firearms “legally impossible”). . The mere fact that Gresham is exposed to prosecution for the same conduct under two different criminal statutes does not occasion a constitutional defect. The Constitution permits Congress to prohibit the same conduct under multiple statutes, provided the prosecution does not violate the Double Jeopardy Clause. See, e.g., Hunter, 73 F.3d at 262; Ross, 9 F.3d at 1194; Jones, 976 F.2d at 183. In the instant case, Gresham's prosecution does not constitute double jeopardy. Accordingly, the government is entitled to prosecute him under both statutes, and the threat of prosecution under one statute does not immunize him from prosecution under another. . See also United States v. Dickey, 102 F.3d 157, 163 (5th Cir.1996) (reaffirming Rawls); United States v. Kuban, 94 F.3d 971, 973 (5th Cir.1996) (reaffirming Rawls), cert. denied, - U.S. -, 117 S.Ct. 716, 136 L.Ed.2d 635 (1997). .The Rawls court acknowledged that this construction is at odds with the restrictive interpretation of the interstate commerce power endorsed in Lopez, but considered itself bound to follow the unambiguous language of Scarborough. 85 F.3d at 243 (Garwood, J., specially concurring). The Rawls interpretation of the \"in or affecting commerce” element of § 922(g)(1) is binding on this court. Therefore, the jurisdictional nexus provision of § 922(g)(1) requires only a \"minimal nexus” between the firearm and interstate commerce. . See, e.g., United States v. Walters, 87 F.3d 663, 667 (5th Cir.), cert." }, { "docid": "11393450", "title": "", "text": "§ 102(9) of the Firearms Owners’ Protection Act of 1986 (“FOPA”), 18 U.S.C. § 922(o), which amended the Gun Control Act of 1968 by making possession of machineguns illegal, implicitly repealed portions of the NFA. We review such legal questions de novo. United States v. Guajardo, 950 F.2d 203, 206 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992). Ardoin argues that 26 U.S.C. §§ 5821, 5861(d), (e), (f), (l), 5871, and 5845 are unconstitutional because they were originally based upon Congress’s taxing power. He reasons that since individuals may not possess ma-chineguns manufactured after May 19, 1986, and ATF refuses to accept applications to register or to pay the tax on such weapons, the constitutional authority for provisions of the NFA dealing with the registration and taxing of post-1986 machineguns is gone. Consequently, criminal liability imposed under the NFA for failure to comply with these provisions has also been repealed. Ardoin cites United States v. Rock Island Armory, 773 F.Supp. 117 (C.D.Ill.1991), and United States v. Dalton, 960 F.2d 121 (10th Cir.1992), as authority for this position. In Rock Island Armory, the court held portions of the NFA to have been implicitly repealed by the FOPA Two bases exist for declaring the portions of the NFA pertaining to post-1986 machine-guns to have been implicitly repealed. First, the fact that ATF no longer collects taxes or accepts registration forms for such weapons makes compliance with § 5861(d) impossible. Second, and more importantly in the Rock Island Armory court’s view, the refusal to tax these weapons undercuts the constitutional basis of registration, since the NFA was originally upheld under Congress’s power to tax. The Tenth Circuit adopts this view in Dalton. The government cites United States v. Jones, 976 F.2d 176 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2361, 124 L.Ed.2d 260 (1993), to rebut these two arguments. The court held in Jones that in the absence of an affirmative showing of an intention to repeal a statute, the only permissible justification for repeal by implication is when the earlier and later statutes are" }, { "docid": "22087795", "title": "", "text": "upheld the Act based on the taxation power of Congress, Sonzinsky v. United States, 300 U.S. 506, 514, 57 S.Ct. 554, 556, 81 L.Ed. 772 (1937), and we have upheld the Act in a decision involving a “destructive device.” United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972). “Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.” Id.; see also United States v. Gresham, 118 F.3d 258, 262 (5th Cir.1997) (“[I]t is well-settled that [the Firearms Act] is constitutional because it is ‘part of the web of regulation aiding enforcement of the transfer tax provision in [the Act].’ ” (quoting Ross, 458 F.2d at 1145)). Spoerke’s argument that the Act is unconstitutional as applied to him because pipe bombs are unlawful and cannot be taxed fails.- “[T]he unlawfulness of an activity does not prevent its taxation.” Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994). “A statute does not cease to be a valid tax measure because it deters the activity taxed, because the revenue obtaine'd is negligible, or because the activity is otherwise illegal.” Minor v. United States, 396 U.S. 87, 98 n. 13, 90 S.Ct. 284, 289 n. 13, 24 L.Ed.2d 283 (1969). The constitutionality of the Act as applied to Spoerke does not depend on whether he is legally permitted to possess the pipe bombs. Gresham, 118 F.3d at 263. Spoerke’s argument is also based on a false premise: “No federal statute completely outlaws the possession of pipe bombs ...; therefore, their registration is not legally impossible.” Id.; United States v. Eaton, 260 F.3d 1232, 1236 (10th Cir.2001) (Prosecution for possession of unregistered pipe bombs under the Act was not unconstitutional because registration of a pipe bomb is not a legal impossibility.). Because Spoerke conceivably could have registered and paid taxes on his pipe bombs, “the registration requirement governing pipe bombs ... is part of the web of regulation aiding enforcement of the transfer tax provision in [the Act]” and is “plainly constitutional.” Gresham, 118 F.3d at 263 (internal" }, { "docid": "12398999", "title": "", "text": "on the argument that the ban on machineguns rendered the registration requirements and criminal penalties of the NFA unconstitutional. Ardoin, 19 F.3d at 179. Therefore, Ardoin necessarily decided the constitutional issue as a prerequisite to rejecting the theory of implicit repeal. Id. . The authority of Congress to tax illegal activity is firmly established. See, e.g., Department of Revenue v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994); Marchetti v. United States, 390 U.S. 39, 44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968). . See also United States v. Thomas, 15 F.3d 381, 382-83 (5th Cir. 1994) (affirming the denial of a motion for acquittal under § 5861(d) because defendant failed to demonstrate that pipe bombs cannot be registered). . Gresham offers no authority to support the proposition that registration of a pipe bomb is legally impossible, but he contends that registration of a pipe bomb is impossible as a practical matter. However true that may be, it does not undermine the constitutional basis of the statute. To the contrary, if possession of pipe bombs is not illegal per se, the registration requirement is reasonably related to the revenue purposes of the act and does not impose an unreasonable dilemma on Gresham. We express no opinion as to whether the prohibition against possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), would have been sufficient to render the registration of the pipe bomb legally impossible in this case, as Gresham does not suggest this alternative ground for our consideration. See United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995) (holding that the prohibition against possession of a firearm by a convicted felon does not render registration of such firearms “legally impossible”). . The mere fact that Gresham is exposed to prosecution for the same conduct under two different criminal statutes does not occasion a constitutional defect. The Constitution permits Congress to prohibit the same conduct under multiple statutes, provided the prosecution does not violate the Double Jeopardy Clause. See, e.g., Hunter, 73 F.3d at 262; Ross, 9 F.3d at" }, { "docid": "12398983", "title": "", "text": "bombs is not a mere pretext for a police power, but is “part of the web of regulation aiding enforcement of the transfer tax provision in § 5811.” Ross, 458 F.2d at 1146. Under the circumstances of the instant case, therefore, the registration requirement is plainly constitutional. Second, to the objection that it would violate due process to convict a defendant for the possession of an unregistered firearm, when such registration is impossible because the defendant cannot legally possess the firearm, the Ardoin court had a ready answer: Just say no. If registration of the weapon is legally impossible, we explained, the defendant can comply with the registration requirement by not taking unlawful possession of an illegal weapon. Therefore, we held that prosecutions for failure to comply with the registration requirement do not violate the Due Process Clause, notwithstanding the fact that compliance may be legally impossible, because such prosecutions impose no “cruel dilemma” on defendants. Ardoin, 19 F.3d at 180 n. 4. Likewise, if it was legally impossible for Gresham to register the pipe bomb and thereby comply with the NFA, he could avoid prosecution by not engaging in the illegal activity. If Gresham chose to build an illegal pipe bomb and violate the law, therefore, he cannot subsequently complain that his prosecution for a violation of § 5861(d) offends the Due Process Clause. There is nothing “fundamentally unfair” about punishing a criminal, whether directly or indirectly, for engaging in illegal activity. Cf. Ardoin, 19 F.3d at 180 n. 4. III. Gresham next argues that the district court erred in denying his motion to dismiss count two of the indictment, charging possession of a firearm by a convicted felon in violation of § 922(g)(1), because that statute is unconstitutional. Citing United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Gresham claims the statute exceeds Congress’s authority to regulate interstate commerce. Furthermore, he argues that the indictment charging him with violations of § 922(g)(1) was defective in that it failed to charge every element of the offense. Neither claim has merit. A. The constitutionality of" }, { "docid": "12398979", "title": "", "text": "constitutionality of 26 U.S.C. § 5861(d) is firmly established, and we need not reconsider it. B. Notwithstanding the statute’s facial constitutionality, Gresham claims that his conviction violates the due process clause and belies the constitutional foundation of § 5861(d), because it was legally impossible for him to register the pipe bomb and thus comply with the requirements of the NFA. We disagree. The NFA forbids the manufacture or transfer of any firearm without the government’s advance permission. Permission shall be denied if the making, transfer or possession of the firearm would place the transferee in violation of the law. See 26 U.S.C. §§ 5812, 5822. If permission is not obtained, the registration requirement cannot be satisfied. See 26 U.S.C. § 5841(c). Consequently, Gresham complains that the NFA permits the government to deny registration, yet permits prosecution for possession of an unreg- istered firearm. This dilemma, he contends, violates the due process clause and belies the constitutional foundation of the statute. In support of this argument, Gresham cites two cases in which convictions obtained pursuant to § 5861(d) have been held unconstitutional, under circumstances similar to the instant ease. See, e.g., United States v. Dalton, 960 F.2d 121 (10th Cir.1992); United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.I11.1991). These two courts held that a conviction for possession of an unregistered maehinegun, in violation of § 5861(d), would violate due process because the enactment of another statute, 18 U.S.C. § 922(o), made registration of the firearms impossible. Likewise, they held that a statute enacted under the taxing power, to facilitate the enforcement and collection of the tax, loses its constitutional foundation when the object of the tax is prohibited. See Dalton, 960 F.2d at 125; Rock Island Armory, 773 F.Supp. at 125. Accordingly, the two courts concluded, it would violate due process to convict a defendant for violations of a statute when compliance with it is legally impossible. This court rejected the same claim in United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994), holding that the enactment of § 922(o) did not absolve maehinegun owners of their" }, { "docid": "1770349", "title": "", "text": "the Constitution. Id. at 295-96, 56 S.Ct. at 227. It is well established that Congress may tax both legal and illegal activities. Marchetti v. United States, 390 U.S. 39, 44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968). Gambling and other acts which may be illegal under state law may be taxed, and registration may be required to assist in collection of the tax as long as registration information is not shared with the police, since such sharing would violate the privilege against self-incrimination. Id. Registration is among the “ancillary provisions calculated to assure their [i.e., the taxes] collection.” Id. at 42, 88 S.Ct. at 699. In contrast with the federal taxation and registration of conduct made illegal under state law, which the courts have upheld, the case at bar involves federal taxation and registration requirements which the government interprets as repealed by a federal statute making post-1986 machine-guns illegal. In short, the government registers gamblers and accepts their tax payments; it refuses to accept registrations and tax payments for the making of machineguns. The prosecution also asserts that “machine guns may still be manufactured, and therefore taxed, under 18 U.S.C. § 922(o )(2)(A).” Response at 6. Yet the government has successfully argued that that provision allows manufacture only for official government use. Farmer v. Higgins, 907 F.2d at 1042-44. Manufacture for government use is exempt from any tax. 26 U.S.C. §§ 5852, 5953. Also, this argument fails to address the fact that the United States refuses to register any post-1986 machineguns, thereby severing any tax nexus for this registration requirement, with which compliance is impossible. In its motion to reconsider, the prosecution reiterates that the government can tax an item or activity which is illegal. Yet the very framing of this proposition presupposes that the activity can and will be taxed. By contrast, in the case at bar, the government interprets 18 U.S.C. § 922(o) to prevent the registration and taxation of post-1986 machineguns made for private purposes under the National Firearms Act, 26 U.S.C. § 5801 et seq.. The prosecution relies on Marchetti v. United States, supra, 390" }, { "docid": "12398997", "title": "", "text": "issue in this case: whether Gresham was guilty of shipping the pipe bomb to Taylor. Although Meeks’s testimony corroborated the government’s theory of the ease, it was not necessary to obtain a conviction. Thus, the “newly discovered” evidence was cumulative, not material. Moreover, given the weight of the evidence amassed against Gresham, Meeks’s recantation is not sufficient to raise a reasonable doubt. Under these circumstances, it is impossible to conclude that this “newly discovered evidence” would probably result in an acquittal. See MMR Corp., 954 F.2d at 1046; Nixon, 881 F.2d at 1311. AFFIRMED. . For purposes of the NFA, the term \"firearm” includes \"destructive devices.” See 26 U.S.C. § 5845(a). \"Destructive devices,” in turn, include any “explosive bomb.” See 26 U.S.C. § 5845(f). Under this definition, the pipe bomb manufactured by Gresham qualified as a \"firearm” under the act. . See also United States v. Parker, 960 F.2d 498, 500 (5th Cir.1992) (discussing Ross). . Section 922(o ) outlaws the transfer or possession of all machineguns that were not lawfully possessed prior to the effective date of the statute. Because possession of machineguns manufactured or transferred after that date is illegal, their registration is legally impossible. See' 26 U.S.C. § 5812, 5822. . We declined to follow Dalton and Rock Island Armory in reaching our decision in Ardoin. See Ardoin, 19 F.3d at 179-80. Furthermore, the majority of courts addressing this question have agreed with our disposition, declining to follow Dalton and Rock Island Armory. See Hunter v. United States, 73 F.3d 260, 261-62 (9th Cir. 1996); United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995); United States v. Ross, 9 F.3d 1182, 1192-94 (7th Cir. 1993), vacated on other grounds, 511 U.S. 1124, 114 S.Ct. 2129, 128 L.Ed.2d 860 (1994); United States v. Jones, 976 F.2d 176, 182-84 (4th Cir.1992). . Gresham attempts to distinguish Ardoin by claiming that the only issue in Ardoin was whether the enactment of § 922(o ) had implicitly repealed portions of the NFA. This distinction is superficial and unpersuasive, however, as the theory of implicit repeal considered in Ardoin was based" }, { "docid": "10933191", "title": "", "text": "a citizen could legally possess a machine gun, as long as he/she complied with the relevant registration and tax provisions of the NFA. See Ardoin, 19 F.3d at 183 (Wiener, J., dissenting) (“Simply put, since 1934 the NFA has said to such a citizen, “You may manufacture, transfer, or possess a machine gun if— but only if — you register and pay taxes on it.’ ”). Then, in 1986, Congress enacted section 922(o), which forbids the possession of any machine gun made after 1986. Congress did not indicate what effect section 922(o) would have on the NFA. “But undeniably the enactment of section 922(o) did effect the NFA — enormously.” Id. The NFA forbids the BATF to register and accept taxes for illegal firearms. Consequently, Congress’ enactment of section 922(o), which made the mere possession of machine guns by private citizens illegal, rendered the extensive taxation and registration provisions of the NFA meaningless. As Judge Wiener eloquently stated, “Their vestigial existence on the statute books analogizes perfectly to the human appendix: no useful function whatsoever, but unlimited potential for insidious mischief.” Id. at 184. Finally, the obsolescence of the NFA provisions is revealed if one looks to their original purpose. The Supreme Court upheld the validity of the NFA because it “was a revenue measure only and did not purport to exercise any general criminal power not delegated to Congress by the Constitution.” United States v. Rock Island Armory, 773 F.Supp. 117, 121 (C.D.Ill.1991) (citing Sonzinsky v. United States, 300 U.S. 506, 513, 57 S.Ct. 554, 555-56, 81 L.Ed. 772 (1936)). After the enactment of Section 922(o), however, those provisions no longer produce any revenue from the possession of machine guns by private citizens. “The suggestion that a tax measure can somehow have continued vitality when it no longer taxes certainly tests one’s imagination.” Ardoin, 19 F.3d at 184 (Wiener, J., dissenting). While implied repeals are disfavored, in this instance the Court is left with no other logical choice. Section 5861(d) and section 922(o) are utterly irreconcilable. Section 922(o) has superseded and supplanted section 5861(d) with respect to machine guns" }, { "docid": "12398981", "title": "", "text": "obligation to register such weapons and pay the tax as required by the NFA, nor did it immunize them from criminal prosecution if they failed to comply with the statute. Id. at 180. Furthermore, we held that prosecutions under § 5861(d) are constitutional, despite the fact that it is legally impossible to register machineguns in the wake of § 922(o). Id. Hence, we held that such prosecutions do not offend due process. The Ardoin court based its conclusions on two fundamental premises that apply with equal force in the instant ease. First, the court noted that Congress may tax illegal activity. Consequently, although § 922(o) prohibits the transfer and possession of machineguns not legally possessed prior to 1986, Congress may still tax the illegal possession of such machineguns and may still assess criminal penalties for failure to comply with the registration requirements promulgated to enforce the tax. Id. Insofar as the basis for the authority to regulate compliance with the registration requirements—the taxing authority—still exists, the Ardoin court held that the registration requirements are constitutional under the taxation power. Id. Likewise, even if Gresham was not legally entitled to possess a pipe bomb, the mere fact that his possession was illegal did not absolve him of the obligation to comply with the requirements of the NFA, nor did it preclude the government from prosecuting him for his failure to register the destructive device. The pipe bomb remained taxable under the NFA; therefore, the registration requirements and enforcement provisions of the NFA are constitutional and enforceable. Cf. Ardoin, 19 F.3d at 180. Indeed, the facts of this case are even less sympathetic than are those we found insufficient to merit relief in Ardoin. There, registration of the machineguns was legally impossible, as the object of the tax had been banned completely by § 922(o). No federal statute completely outlaws the possession of pipe bombs, however; therefore, their registration is not legally impossible. United States v. Gambill, 912 F.Supp. 287, 290 (S.D.Ohio 1996); accord United States v. Copus, 93 F.3d 269, 276 (7th Cir.1996). For this reason, the registration requirement governing pipe" }, { "docid": "10933188", "title": "", "text": "Mr. Gambill guilty of possessing an unregistered machine gun in violation of the National Firearms Act (“NFA”), 26 U.S.C. § 5861(d) (enacted 1968). In 1986, Congress enacted a separate criminal statute prohibiting the possession of any machine gun made after 1986. 18 U.S.C. § 922(o). The Government’s witnesses admitted that the Government would not permit the registration of machine guns covered by section 922(o). Mr. Gambill contends that due process bars his conviction under a statute that punishes his failure to register a weapon when such registration is precluded by law. He also maintains that sections 5861(d) and 922(o) are irreconcilable. We agree and reverse his conviction under Count VI. Section 5861(d) states that it is unlawful for any person to “receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d) (emphasis added). Section 922(o) states in pertinent part that “it shall be unlawful for any person to transfer or possess a machinegun.” 18 U.S.C. § 922(o). The Bureau of Alcohol, Tobacco and Firearms’ (“BATF”) agents admitted at trial that all applications will be denied if it is illegal to possess or transfer the weapon. See also 26 U.S.C. § 5812(a) (applications will be denied if possession of the firearm would place person in violation of law). Mr. Gambill concedes that the Government could have charged him with illegal possession of a machine gun under section 922(o), but the Government chose not to do so. Instead, the Government chose to prose cute Mr. Gambill under section 5861(d) with possession of an unregistered machine gun. A. Split in the Circuits This case presents an issue that the United States Court of Appeals for the Sixth Circuit is yet to decide: whether section 922(o) implicitly repealed portions of the NFA. A split of opinion exists in the circuits that have addressed this question. See United States v. Dalton, 960 F.2d 121 (10th Cir.1992) (unconstitutional to prosecute under section 5861(d)); United States v. Kurt, 988 F.2d 73 (9th Cir.1993) (favoring analysis in Dalton); but see United States v. Ardoin, 19" }, { "docid": "12398982", "title": "", "text": "under the taxation power. Id. Likewise, even if Gresham was not legally entitled to possess a pipe bomb, the mere fact that his possession was illegal did not absolve him of the obligation to comply with the requirements of the NFA, nor did it preclude the government from prosecuting him for his failure to register the destructive device. The pipe bomb remained taxable under the NFA; therefore, the registration requirements and enforcement provisions of the NFA are constitutional and enforceable. Cf. Ardoin, 19 F.3d at 180. Indeed, the facts of this case are even less sympathetic than are those we found insufficient to merit relief in Ardoin. There, registration of the machineguns was legally impossible, as the object of the tax had been banned completely by § 922(o). No federal statute completely outlaws the possession of pipe bombs, however; therefore, their registration is not legally impossible. United States v. Gambill, 912 F.Supp. 287, 290 (S.D.Ohio 1996); accord United States v. Copus, 93 F.3d 269, 276 (7th Cir.1996). For this reason, the registration requirement governing pipe bombs is not a mere pretext for a police power, but is “part of the web of regulation aiding enforcement of the transfer tax provision in § 5811.” Ross, 458 F.2d at 1146. Under the circumstances of the instant case, therefore, the registration requirement is plainly constitutional. Second, to the objection that it would violate due process to convict a defendant for the possession of an unregistered firearm, when such registration is impossible because the defendant cannot legally possess the firearm, the Ardoin court had a ready answer: Just say no. If registration of the weapon is legally impossible, we explained, the defendant can comply with the registration requirement by not taking unlawful possession of an illegal weapon. Therefore, we held that prosecutions for failure to comply with the registration requirement do not violate the Due Process Clause, notwithstanding the fact that compliance may be legally impossible, because such prosecutions impose no “cruel dilemma” on defendants. Ardoin, 19 F.3d at 180 n. 4. Likewise, if it was legally impossible for Gresham to register the pipe" }, { "docid": "22087796", "title": "", "text": "it deters the activity taxed, because the revenue obtaine'd is negligible, or because the activity is otherwise illegal.” Minor v. United States, 396 U.S. 87, 98 n. 13, 90 S.Ct. 284, 289 n. 13, 24 L.Ed.2d 283 (1969). The constitutionality of the Act as applied to Spoerke does not depend on whether he is legally permitted to possess the pipe bombs. Gresham, 118 F.3d at 263. Spoerke’s argument is also based on a false premise: “No federal statute completely outlaws the possession of pipe bombs ...; therefore, their registration is not legally impossible.” Id.; United States v. Eaton, 260 F.3d 1232, 1236 (10th Cir.2001) (Prosecution for possession of unregistered pipe bombs under the Act was not unconstitutional because registration of a pipe bomb is not a legal impossibility.). Because Spoerke conceivably could have registered and paid taxes on his pipe bombs, “the registration requirement governing pipe bombs ... is part of the web of regulation aiding enforcement of the transfer tax provision in [the Act]” and is “plainly constitutional.” Gresham, 118 F.3d at 263 (internal quotation marks omitted). We also have rejected an argument by a defendant that his “firearms conviction violate[d] due process because it punishes him for possessing an unregistered firearm when registration to [the defendant], a convicted felon, is precluded by law.” United States v. Rivera, 58 F.3d 600, 601 (11th Cir.1995). We explained that, because the defendant could comply with the Act “by declining to possess firearms[,] ... his conviction under [the Act] does not violate due process.” Id. at 602. The same is true for Spoerke and his pipe bombs. Because Spoerke could have declined to manufacture and possess the pipe bombs, his indictment and conviction do not violate his right to due process. B. The Evidence Was Sufficient To Support the Finding That Spoerke’s Devices Were Destructive Devices Under the Act. Spoerke argues that the district court erred when it denied his motion for a judgment of acquittal because the evidence was insufficient to convict him. Spoerke challenges the sufficiency of the evidence as to one element that is common to each conviction: whether" } ]

[ { "docid": "22556039", "title": "", "text": "in a suit to which the United States is not a party has no binding effect but that the United States may sue to cancel the judgment and set aside the conveyance made pursuant thereto. Bowling & Miami Investment Co. v. United States, 233 U. S. 528; Privett v. United States, 256 U. S. 201; Sunderland v. United States, 266 U. S. 226. In the stronger case of a trust allotment, it would seem clear that no effective relief can be given in a proceeding to which the United States is not a party and that the United States is therefore an indispensable party to any suit to establish or acquire an interest in the lands. Compare McKay v. Kalyton, 204 U. S. 458. The extent of the restraints on alienation contained in § 5 of the General Allotment Act was clarified and modified to some extent by subsequent legislation. E. g., Act of May 27, 1902, c. 888, § 7, 32 Stat. 245, 275; Act of May 8, 1906, c. 2348, 34 Stat. 182; Act of March 1, 1907, c. 2285, 34 Stat. 1015, 1018; Act of May 29, 1908, c. 216, 35 Stat. 444; Act of June 25, 1910, c. 431, §§ 1-5, 36 Stat. 855-56; Act of May 18,1916, c. 125, 39 Stat. 123, 127; U. S. C. Title 25, §§ 349, 372, 373, 378, 379, 394, 403, 404, 405, 408. Under § 4 of the Indian Reorganization Act, applicable to all Indian Reservations unless a majority of the adult Indians vote against its application, the transferability of restricted Indian lands is greatly limited. Act of June 18, 1934, e. 576, 48 Stat. 984, U. S. C. Title 25, § 464. Compare the Act of March 1, 1907, c. 2285, 34 Stat. 1018, U. S. C. Title 25, § 405; Act of June 25, 1910, c. 431, §§ 4, 8, 36 Stat. 856-857; U. S. C. Title 25, §§ 403, 406. “Whenever any nontaxable land of a restricted Indian of the Five Civilized Tribes or of any other Indian tribe is sold to any State, county, or" } ]

[ { "docid": "20929299", "title": "", "text": "be protected. It is not such an interest as may be expressed in terms of property. It need not be. The interest of the Government in such a proceeding is defined in the opinion as follows: “The United States as guardian of the Indians is necessarily interested either in obtaining partition in kind where that course conforms to its policy of preserving restricted land for the Indians or in seeing that the best possible price is obtained where a sale is desirable. Where, as here, the lands are both tax-exempt and restricted, the United States is concerned with the reinvestment of the proceeds in other lands likewise tax-exempt and restricted as provided in the Act of June 30, 1932, 47 Stat. 474, 25 U.S.C. § 409a, 25 U.S.C.A. § 409a. The United States is also interested in protecting the preferential right of the Secretary of the Interior to purchase the land at the sale for another Indian, as provided in § 2 of the Act of June 26, 1936, 49 Stat. 1967, 25 U.S.C.A. § 502. These are important governmental interests. Since the power of Congress over Indian affairs is plenary, it may waive or withdraw these duties of guardianship or entrust them to such agency — state or federal — as it chooses.” (Emphasis supplied.) In the Hellard Case, which was begun by one who had acquired title through partition proceedings, the Indian defendants, former owners of the land, filed disclaimers, but it was held that the Government in its own capacity might continue the suit. In that regard, the Court said: “Though the Indian’s interest is alienated by judicial decree, the United States may sue (emphasis supplied) to cancel the judgment and set the conveyance aside where it was not a party to the action.” The Hellard case is unlike Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235, in that the Minnesota court had no jurisdiction to condemn the lands involved therein. The Hellard Case is also unlike Grisso v. United States, 10 Cir., 138 F.2d 996, 1000, in that the interest of" }, { "docid": "22296194", "title": "", "text": "we do not think that Congress did more by those provisions of the Act of June 14, 1918 with which we are presently concerned than to grant the Oklahoma state courts jurisdiction over partition proceedings. Restricted Indian land is property in which the United States has an interest. “This national interest is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.” Heckman v. United States, 224 U. S. 413, 437. Though the Indian’s interest is alienated by judicial decree, the United States may sue to cancel the judgment and set the conveyance aside where it was not a party to the action. Bowling & Miami Investment Co. v. United States, 233 U. S. 528; Privett v. United States, 256 U. S. 201; Sunderland v. United States, 266 U. S. 226. Under § 2 of the Act of June 14, 1918 lands partitioned in kind to full-bloods remain restricted. Only if the land is sold at partition sale are the restrictions removed. The governmental interest throughout the partition proceedings is as clear as it would be if the fee were in the United States. Minnesota v. United States, 305 U. S. 382, 387-388; Town of Okemah v. United States, 140 F. 2d 963. The United States as guardian of the Indians is necessarily interested either in obtaining partition in kind where that course conforms to its policy of preserving restricted land for the Indians or in seeing that the best possible price is obtained where a sale is desirable. Where, as here, the lands are both tax- exempt and restricted, the United States is concerned with the reinvestment of the proceeds in other lands likewise tax-exempt and restricted as provided in the Act of June 30, 1932, 47 Stat. 474, 25 U. S. C. 1 409a. The United States is also interested in protecting the preferential right of the Secretary of the Interior to purchase the land at the sale for another Indian, as provided in" }, { "docid": "12713454", "title": "", "text": "that the Federal District Court was without jurisdiction over a suit by the United States to collect a tax imposed by a tribe organized under Federal law on the use of Indian trust lands by non-members of the tribe, and (2) that a tax on the use of Indian trust lands imposed by an Indian tribe on non-members of the tribe violates the Fifth and Fourteenth Amendments to the Constitution. Section 1345, Title 28 U.S.C. in part provides that “the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States”. Of course, if there is no obligation on behalf of the United States to the public or any individual, or it has no interest of its own, it could not maintain such an action. United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747. Where, however, the government has an obligation to its Indian wards as well as an interest of its own in the trust property and the tax involved, it may maintain the action. Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820; United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107; United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023; United States v. Board of Com’rs of Grady County, Okl., 10 Cir., 54 F.2d 593. In Heckman v. United States, supra [224 U.S. 413, 32 S.Ct. 431], it is said: “During the continuance of this guardianship, the right and duty of the nation to enforce by all appropriate means the restrictions designed for the security of the Indians cannot be gainsaid. While relating to the welfare of the Indians, the maintenance of the limitations which Congress has prescribed as a part of its plan of distribution is distinctly an interest of the United States. A review of its dealings with the tribe permits no other conclusion. Out of its peculiar relation to these dependent peoples sprang obligations to the fulfillment of which the national honor has been committed. ‘From their very" }, { "docid": "7213664", "title": "", "text": "district court granted summary judgment to the United States and denied Tacoma’s cross motion for summary judgment. The district court held that the United States had standing, that it was not equitably estopped, and that the condemnation proceedings were void because brought in state court and the United States was not a party. After gaining summary judgment on liability, the United States declined to seek damages for trespass. On September 27, 1999, the United States filed a motion for entry of final judgment and to terminate discovery. Tacoma opposed, contending that discovery was needed to identify all parties bound by the judgment. The district court granted the motion and entered final judgment on December 14,1999. Tacoma timely appealed on January 13, 2000. II We review the grant of summary judgment de novo. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001) (citations omitted). We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law. Id. (citation omitted). Tacoma contends: (1) that the United States lacks standing to bring this action and (2) that, notwithstanding the contentions of the United States and the Tribe, the Funk proceedings or the actions of the United States effectively conveyed property interests in the five allotments. We hold that the United States has standing to pursue this action, and that the United States did not convey its interest in the five allotments. A. Standing Standing requires: (1) that the plaintiff suffered an injury in fact; (2) that there is “a causal connection between the injury and the conduct complained of’; and (3) that there is a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The United States meets the first requirement. See, e.g., United States v. Hellard, 322 U.S. 363, 366, 64 S.Ct. 985, 88 L.Ed. 1326 (1944) (“Restricted Indian land is property in which the United States has an interest.”). The" }, { "docid": "11396278", "title": "", "text": "States, 233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1080; Privett v. United States, 256 U.S. 201, 41 S.Ct. 455, 65 L.Ed. 889; Sunderland v. United States, 266 U.S. 226, 45 S.Ct. 64, 69 L.Ed. 259. Under § 2 of the Act of June 14, 1918 lands partitioned in kind to full-bloods remain restricted. Only if the land is sold at partition sale are the restrictions removed. The governmental interest throughout the partition proceedings is as clear as it would be if the fee were in the United States. State of Minnesota v. United States, 305 U.S. 382, 387-388, 59 S.Ct. 292, 294, 295, 83 L.Ed. 235; Town of Okemah, Okl. v. United States, 10 Cir., 140 F.2d 963. * * *” (Italics ours.) We are of the opinion that the Governmental interest in the instant action is as great as it would be if the fee to the lands involved were in the United States. Indeed, since the United States is suing as a guardian of a dependent nation in discharge of a fiduciary duty, its right and duty to protect the interests of its wards may be even greater than it would if it were suing in its own behalf with respect to its own lands. Counsel for the Alonzos further contend that the United States could have appeared in the state court action and that it was its duty so to do, but in the Leiter case the Supreme Court said [352 U.S. 220, 77 S.Ct. 292]: “ * * * In this case, a private party is seeking by a state proceeding to obtain property currently in the hands of persons holding under the United States; the United States is seeking to protect that possession and quiet title by a federal court proceeding. Therefore, since the position of the United States is essentially a defensive one, we think that it should be permitted to choose the forum in this case, even though the state litigation has the elements of an action characterized as quasi in rem. * * * ” (Italics ours.) Accordingly, we conclude that" }, { "docid": "7213665", "title": "", "text": "applied substantive law. Id. (citation omitted). Tacoma contends: (1) that the United States lacks standing to bring this action and (2) that, notwithstanding the contentions of the United States and the Tribe, the Funk proceedings or the actions of the United States effectively conveyed property interests in the five allotments. We hold that the United States has standing to pursue this action, and that the United States did not convey its interest in the five allotments. A. Standing Standing requires: (1) that the plaintiff suffered an injury in fact; (2) that there is “a causal connection between the injury and the conduct complained of’; and (3) that there is a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The United States meets the first requirement. See, e.g., United States v. Hellard, 322 U.S. 363, 366, 64 S.Ct. 985, 88 L.Ed. 1326 (1944) (“Restricted Indian land is property in which the United States has an interest.”). The United States has suffered injury to its property rights in all the allotments, whether the United States’ interest for the Tribe is fee simple or reversionary. See Heckman v. United States, 224 U.S. 413, 431, 437-47, 32 S.Ct. 424, 56 L.Ed. 820 (1912). The United States also suffered an injury as the trustee. See Seminole Nation v. United States, 316 U.S. 286, 296-97, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942). See generally 25 U.S.C. § 175. And the United States has an independent, governmental interest when it has not been made a party in condemnation proceedings of restricted Indian lands. Hellard, 322 U.S. at 368, 64 S.Ct. 985; United States v. Candelaria, 271 U.S. 432, 443-44, 46 S.Ct. 561, 70 L.Ed. 1023 (1926). Tacoma argues that the United States cannot fulfill the causal connection requirement, urging that the alleged harm is not fairly traceable to Tacoma’s actions because the federal officials’ approval of the conditional judgment was an intervening cause of the alleged harm. But this ignores the fact that the initial and primary causes" }, { "docid": "9697485", "title": "", "text": "its own name, in its own courts to enforce such restrictions as may have been imposed upon the alienation of the allotted lands is no longer open to question. Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820; Goat v. United States, 224 U.S. 458, 32 S.Ct. 544, 56 L.Ed. 841. After the issuance of a patent under statutory provisions limiting the power of the Indian grantee to alienate the land conveyed, power remains in Congress to extend, or to provide that the Ex7 ecutive may extend, in his discretion, the period of limitation, provided such power is exercised prior to the expiration of the period of restriction. United States v. Jackson, 280 U.S. 183, 50 S.Ct. 143, 74 L.Ed. 361; Tiger v. Western Investment Co., 221 U.S. 286, 31 S.Ct. 578, 55 L.Ed. 738; United States v. Bartlett, 235 U.S. 72, 35 S.Ct. 14, 59 L.Ed. 137. The restriction against alienation binds the land for the period restricted,’and the death of the allottee and inheritance ’ of the land by his heirs does not operate to remove the restriction, except in cases where Congress has expressly limited the restriction to the lifetime of the allottee. Bowling v. United States, 233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1080; Gannon v. Johnston, 243 U.S. 108, 37 S.Ct. 330, 61 L.Ed. 622. In general, statutes passed for the benefit of dependent tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138; Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941. The Heckman case, supra, established the principle that the equities in favor of the purchaser in good faith for valuable consideration are not to be considered as against the Indian who has received the full consideration for his lands in suits of the kind here involved, brought by the Government to avoid conveyances by him. “The restrictions were set forth in public laws, and were matters of general knowledge. Those who dealt" }, { "docid": "9697486", "title": "", "text": "his heirs does not operate to remove the restriction, except in cases where Congress has expressly limited the restriction to the lifetime of the allottee. Bowling v. United States, 233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1080; Gannon v. Johnston, 243 U.S. 108, 37 S.Ct. 330, 61 L.Ed. 622. In general, statutes passed for the benefit of dependent tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138; Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941. The Heckman case, supra, established the principle that the equities in favor of the purchaser in good faith for valuable consideration are not to be considered as against the Indian who has received the full consideration for his lands in suits of the kind here involved, brought by the Government to avoid conveyances by him. “The restrictions were set forth in public laws, and were matters of general knowledge. Those who dealt with the Indians contrary to these provisions are not entitled to insist that they should keep the land if the purchase price is not repaid, and thus frustrate the policy of the statute.” [224 U.S. 413, 32 S.Ct. 435, 56 L.Ed. 820.] That the extensions of the restriction here involved were made by Executive Order pursuant to the statute of 1906 rather .than directly by the statute we do not Consider of any significance, since administrative regulations, properly made, have been held to be equivalent to law. See Hampton & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624; Maryland Casualty Co. v. United States, 251 U.S. 342, 40 S.Ct. 155, 64 L.Ed. 297. Nor has complete failure of actual notice of the restrictions, or any opportunity for notice apart from that imported by the statute itself, ever, so far as we can ascertain, been held of any significance. Cf. Tiger v. Western Investment Co., supra. In view of the body of authority thus outlined above, it appears that the undoubted" }, { "docid": "11396275", "title": "", "text": "the decision of the United States in Leiter Minerals, Inc., v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, is controlling. Leiter brought an action in a Louisiana state court against certain mineral lessees of the United States. Leiter was out of possession, but claimed title to and sought to have itself declared owner of the mineral rights under land owned by the United States and also sought an accounting for oil and other minerals removed by such lessees under their lease from the United States. Leiter founded its claim on Louisiana Act No. 315 of 1940, L.S.A.-R.S. 9:5806, which, it alleged, made “imprescriptible” a reservation of mineral rights in a deed of December 21, 1938, to the United States by its predecessor in title. After the commencement of the state court action the United' States filed an independent action to quiet its title to the mineral rights, naming all the parties to the state court action as defendants, and sought a preliminary and permanent injunction to restrain the defendants from further prosecution of the state court action. The Federal District Court issued a preliminary injunction. On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the order grant ing the preliminary injunction. The Supreme Court granted certiorari and affirmed the judgment of the Court of Appeals. In its decision the Supreme Court held that the United States was not precluded from seeking injunctive relief by the provisions of 28 U.S.C. § 2283, and that injunctive relief, under the circumstances, was proper. Counsel for the Alonzos seek to distinguish the Leiter case by reason of the fact that there the Government was the owner of the lands in fee simple and in the instant case the fee simple title to the lands involved is in the Pueblo and the Government is suing to vindicate the title of the Pueblo. But restricted Indian land is property in which the United States has an interest. In United States v. Hellard, 322 U.S. 363, 64 S.Ct. 985, 987, 88 L.Ed. 1326, the question was presented as to" }, { "docid": "7213666", "title": "", "text": "United States has suffered injury to its property rights in all the allotments, whether the United States’ interest for the Tribe is fee simple or reversionary. See Heckman v. United States, 224 U.S. 413, 431, 437-47, 32 S.Ct. 424, 56 L.Ed. 820 (1912). The United States also suffered an injury as the trustee. See Seminole Nation v. United States, 316 U.S. 286, 296-97, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942). See generally 25 U.S.C. § 175. And the United States has an independent, governmental interest when it has not been made a party in condemnation proceedings of restricted Indian lands. Hellard, 322 U.S. at 368, 64 S.Ct. 985; United States v. Candelaria, 271 U.S. 432, 443-44, 46 S.Ct. 561, 70 L.Ed. 1023 (1926). Tacoma argues that the United States cannot fulfill the causal connection requirement, urging that the alleged harm is not fairly traceable to Tacoma’s actions because the federal officials’ approval of the conditional judgment was an intervening cause of the alleged harm. But this ignores the fact that the initial and primary causes of the alleged injury were Tacoma’s institution of the Funk proceedings and its failure to name the United States as a defendant. There remains “a fairly traceable connection between the plaintiffs injury an the complained-of conduct of the defendant.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citation omitted); see Bowling v. United States, 233 U.S. 528, 534, 34 S.Ct. 659, 58 L.Ed. 1080 (1914) (“the United States has capacity to sue for the purpose of setting aside conveyances of lands allotted to Indians under its care, where restrictions upon alienation have been transgressed.”). Tacoma also contends that the United States cannot meet the redressability requirement, because the United States has not proved that it, the Tribe, or the Tribe’s members have a current interest in the five allotments. Thus, the argument runs, it is unclear how a declaratory judgment can redress the alleged wrong. However, we conclude that the alleged injury would be redressed through the cancellation of the state judgment and the" }, { "docid": "16969002", "title": "", "text": "and severable” in this proceeding, the object of which is to characterize as invalid an exercise of its power as trustee under the Act of 1906. The injurious effect on the interest of the United States by a decree granting. the relief sought is patent. Where the United States holds the title to Indian lands in trust, it is necessarily interested in the outcome of suits against such property and is an indispensable party. State of Minnesota v. United States, 305 U.S. 382, 386-388, 59 S.Ct. 292, 83 L.Ed. 235. And in suits touching the proper execution of a trust, the trustee is an indispensable party. Thayer v. Life Association of America, 112 U.S. 717, 719, 5 S.Ct. 355, 28 L.Ed. 864. Siler v. Louisville and Nashville R. R., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753: “Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons.” United States v. Butler, 297 U.S. 1, 67, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914; Life & Casualty Ins. Co. v. McCray, 291 U.S. 566, 572, 54 S.Ct. 482, 78 L.Ed. 987. See Cohen, Handbook of Federal Indian Law (1941) 97, and authorities there cited. 34 Stat. 539. Cf. Morrison v. Work, 266 U.S. 481, 487, 488, 45 S.Ct. 149, 152, 69 L.Ed. 394: “If through officials of the United States these lands, or the proceeds thereof, or the accruing interest, are improperly disposed of, it is the-United States, not the officials, which islander obligation to account to the Indians therefor. In other wards, the right-of the Indians is merely to have the- United States administer properly the trust assumed. It resembles the general right of every citizen to have the government administered according to law and the public moneys properly applied. Courts have no power, under the circumstances here presented, to interfere with the performance of the functions committed to an executive department of the government by a suit to which the United States is not," }, { "docid": "11012173", "title": "", "text": "in the suit, should it so elect, and that after such appearance or the expiration of the time allowed therefor, that the proceedings and judgment therein should bind the United States. By § 357, supra, Congress provided in effect that allotted lands restricted against alienation could be condemned but that the United States must be made a party to the condemnation proceeding and that such proceeding must be brought in a federal court. We do not think Congress intended by the Act of April 12, 1926, to so amend § 357, supra, so as to eliminate such requirements in condemnation proceedings. It was suggested on oral argument that no method for service of process is provided by § 357, supra, or other applicable statutory provision. Such service may be made in the manner prescribed by Rule 4 (d) (4) of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c. The judgment is affirmed. Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820. Bowling and Miami Investment Co. v. United States, 233 U.S. 528, 534, 535, 34 S.Ct. 659, 58 L.Ed. 1080; Privett v. United States, 256 U.S. 201, 204, 41 S.Ct. 455, 65 L.Ed. 889; Sunderland v. United States, 266 U.S. 226, 232, 45 S.Ct. 64, 69 L.Ed. 259; State of Minnesota v. United States, 305 U.S. 382, 386, Note 1, 59 S.Ct. 292, 83 L.Ed. 235. United States v. Moore, 8 Cir., 284 F. 86, 90. United States v. Bowling, 256 U.S. 484, 486, 487, 41 S.Ct. 561, 65 L.Ed. 1054. State of Minnesota v. United States, 305 U.S. 382, 388, 59 S.Ct. 292, 83 L.Ed. 235. Caesar v. Burgess, 10 Cir., 103 F.2d 503, 506. Washington v. Miller, 235 U.S. 422, 428, 35 S.Ct. 119, 59 L.Ed. 295; Niagara Fire Ins. Co. v. Raleigh Hardware Co., 4 Cir., 62 F.2d 705, 709." }, { "docid": "11396276", "title": "", "text": "prosecution of the state court action. The Federal District Court issued a preliminary injunction. On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the order grant ing the preliminary injunction. The Supreme Court granted certiorari and affirmed the judgment of the Court of Appeals. In its decision the Supreme Court held that the United States was not precluded from seeking injunctive relief by the provisions of 28 U.S.C. § 2283, and that injunctive relief, under the circumstances, was proper. Counsel for the Alonzos seek to distinguish the Leiter case by reason of the fact that there the Government was the owner of the lands in fee simple and in the instant case the fee simple title to the lands involved is in the Pueblo and the Government is suing to vindicate the title of the Pueblo. But restricted Indian land is property in which the United States has an interest. In United States v. Hellard, 322 U.S. 363, 64 S.Ct. 985, 987, 88 L.Ed. 1326, the question was presented as to whether full-blood Indians of the Five Civilized Tribes could be divested of title to restricted land by a sale pursuant to a judgment of a state court in a partition proceeding to which the United States was not a party. In holding that the United States was not bound by the judgment in the state court action to which it was not a party, the court in its opinion said: “Restricted Indian land is property in which the United States has an interest. ‘This national interest is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.’ Heckman v. United States, 224 U.S. 413, 437, 32 S.Ct. 424, 431, 56 L.Ed. 820. Though the Indian’s interest is alienated by judicial decree, the United States may sue to cancel the judgment and set the conveyance aside where it was not a party to the action. Bowling & Miami Investment Co. v. United" }, { "docid": "11012166", "title": "", "text": "severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.” Section 357, supra, was construed in State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235. In that case Minnesota brought an action in a court of the state to condemn a right-of-way for a highway over nine parcels of land which had been allotted in severalty to individual Indians by trust patents. The court held that the United States was an indispensable party defendant to the condemnation proceedings; that by § 3, supra, it had consented to be sued but only in a federal court and that since the state court had no jurisdiction of the suit against the United States, the federal court did not acquire jurisdiction on removal, and affirmed the judgment of the court of appeals directing dismissal of the action. In the Minnesota case, trust patents had been issued under which the legal title remained in the United States. In the instant case, patents had been issued to the restricted Indian allottees and the legal title was vested in the Indian owners but the lands were subject to restrictions against alienation. Members of the Five Civilized Tribes who own allotted lands restricted against alienation are under the guardianship of the United States; they are wards of the Nation so far as the alienation of such lands is concerned. During the continuation of such guardianship, it is the right and the duty of the United States to enforce the restrictions designed for the security of the Indians by all appropriate means. “The national interest is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.” It has a governmental interest in the enforcement of the restrictions. It is not essential that it should" }, { "docid": "22296193", "title": "", "text": "tribunals to perform such functions is clear. Parker v. Richard, 250 U. S. 235; Harris v. Bell, 254 U. S. 103; Stewart v. Keyes, 295 U. S. 403. But a grant of jurisdiction to a particular court without more does not determine what parties are indispensable to the proceedings in question. Petitioner concedes that the United States is not a necessary party to proceedings to determine heirship under § 1 of the Act of June 14, 1918. Since restrictions on alienation do not prevent inheritance, no governmental interest is at least directly involved in such a determination. ■ It may likewise be inferred from the language, nature, and purpose of Acts of Congress which vest jurisdiction over specified Indian affairs in a designated court that Congress not only has made that tribunal the exclusive agency to effectuate the federal policy but also has dispensed with any requirement that the United States be a party to the proceedings. See Hy-Yu-Tse-Mil-Kin v. Smith, 194 U. S. 401, 413-414; Winton v. Amos, 255 U. S. 373, 392. But we do not think that Congress did more by those provisions of the Act of June 14, 1918 with which we are presently concerned than to grant the Oklahoma state courts jurisdiction over partition proceedings. Restricted Indian land is property in which the United States has an interest. “This national interest is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.” Heckman v. United States, 224 U. S. 413, 437. Though the Indian’s interest is alienated by judicial decree, the United States may sue to cancel the judgment and set the conveyance aside where it was not a party to the action. Bowling & Miami Investment Co. v. United States, 233 U. S. 528; Privett v. United States, 256 U. S. 201; Sunderland v. United States, 266 U. S. 226. Under § 2 of the Act of June 14, 1918 lands partitioned in kind to full-bloods remain restricted. Only if" }, { "docid": "8671424", "title": "", "text": "Northern District of Oklahoma. That the United States, in its general supervision of its Indian wards and to protect them and their properties in pursuance of a national duty, has the right to invoke the equity jurisdiction of the federal courts and to bring an action to set aside conveyances claimed to he violative of restrictions upon alienation of Indian allotments is not a debatable proposition. In Sunderland v. United States, 266 U. S. 226, 233, 45 S. Ct. 64, 65 (69 L. Ed. 259), it is said: “we do not doubt the power of the United States to impose such a restraint upon the sale of the lands of its Indian wards, whether acquired by private purchase and generally subject to state control or not. Such power rests upon the dependent character of the Indians, their recognized inability to safely conduct business affairs, and the peculiar duty of the Federal Government to safeguard their interests and protect them against the greed of others and their own improvidence.” Heckman v. United States, 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820; Bowling v. United States, 233 U. S. 528, 34 S. Ct. 659, 58 L. Ed. 1080; LaMotte v. United States, 254 U. S. 570, 41 S. Ct. 204, 65 L. Ed. 410; Privett v. United States, 256 U. S. 201, 41 S. Ct. 455, 65 L. Ed. 889. Section 9 of the Act of May 27, 1908 (35 Stat. 315) is in part, as follows: “That the death of any allottee * * * shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, that no conveyance of any interest of any full-blood Indian heir of such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.” This proviso' restricts the allotment of the full-blood Indian heir to the extent that his conveyance must be approved by the court having jurisdiction of the settlement of the estate of the deceased allottee, and the Supreme Court of the United States has held" }, { "docid": "20929297", "title": "", "text": "L.Ed. 738; Winton v. Amos, 255 U.S. 373, 41 S.Ct. 342, 65 L.Ed. 684; United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107; Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299. United States v. Hellard, supra. It may not be doubted that Congress had the power in the first place to dispense with the necessity of the Government being a party to the partition proceedings authorized by Act of June 14, 1918, 25 U.S.C.A. § 355, 40 Stat. 606. Indeed, it was the consensus of opinion of the courts and lawyers of Oklahoma, prior to the Hellard opinion, that Congress had done just that. And Congress has the same power to alter, relax, and entirely remove restrictions which it had to impose them, and it can accomplish by ratification what it could have authorized in the first place. United-States v. Heinszen, supra. Since Section 3 of the Act in question was designed to cure certain defects discussed in United States v. Hellard, it is appropriate to examine that opinion and see just what the Supreme Court said. It confirmed the jurisdiction of the Oklahoma State courts to partition lands inherited by full blood Indians, Act of June 14, 1918r 25 U.S.C.A. § 355, 40 Stat. 606, and the authority of Congress to select state tribunals to perform such functions. The partition proceedings involved therein were begun and completed in a state court without service of the notice upon the Superintendent for the Five Civilized Tribes as provided in Section 3 of Act of April 12, 1926, 44 Stat. 239, 240. And concerning that, the Supreme Court says [322 U.S. 363, 64 S.Ct. 986] : “By that Act the United States is given an opportunity to-appear in the cause and is bound by the judgment which is entered.” The Court then concluded that the United States was not bound, and that it is a necessary party to such proceedings for the reason that there is a governmental interest to" }, { "docid": "5570048", "title": "", "text": "The plaintiff’s cause of action and supporting legal theory have been discussed at some length in a separate opinion, ante, Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., (D.R.I.1976) (hereinafter Narragansett I), so that a brief summary will suffice here. Plaintiff has brought these two actions against the State of Rhode Island (C.A. No. 750005) and various individuals and businesses (C.A. No. 750006) to establish its right to possession of certain land which it claims is presently held by the defendants in violation of 25 U.S.C. § 177, the Indian Nonintercourse Act (“the Act”). Subject-matter jurisdiction is asserted under 28 U.S.C. §§ 1331, 1337. In order “to prevent the government’s Indian wards from improvidently disposing of their lands and becoming homeless public charges,” United States v. Candelaria, 271 U.S. 432, 441, 46 S.Ct. 561, 563, 70 L.Ed. 1023 (1926), the Act renders invalid any purported alienation of tribal land covered by its terms unless the consent of the United States has been obtained. Narragansett I, ante at 798. Proof of coverage by the Act also establishes the existence of a fiduciary relationship between the federal government as guardian and the covered Indian tribe as ward. Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 380 (1st Cir. 1975), aff’g, 388 F.Supp. 649, 663 n.15 (D.Me.1975) (hereinafter Passamaquoddy). It is beyond debate that the United States, if it chose to do so, could bring an action under the Act as trustee for the tribe. See, e. g., Choctaw and Chickasaw Nations v. Seitz, 193 F.2d 456, 460 (10th Cir. 1951), cert. denied, 343. U.S. 919, 72 S.Ct. 676, 96 L.Ed. 1332 (hereinafter Seitz). It is similarly not disputed that joinder of the United States as a “necessary” party under R. 19(a) would be appropriate if feasible. Cf. United States v. Hellard, 322 U.S. 363, 368, 64 S.Ct. 985, 88 L.Ed. 1326 (1944). As the defendants contend, the consequence of failure to join the United States falls squarely within subdivisions (1)' and (2)(ii) of R. 19(a). See note 1, supra. Unless the United States is a" }, { "docid": "11396277", "title": "", "text": "whether full-blood Indians of the Five Civilized Tribes could be divested of title to restricted land by a sale pursuant to a judgment of a state court in a partition proceeding to which the United States was not a party. In holding that the United States was not bound by the judgment in the state court action to which it was not a party, the court in its opinion said: “Restricted Indian land is property in which the United States has an interest. ‘This national interest is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.’ Heckman v. United States, 224 U.S. 413, 437, 32 S.Ct. 424, 431, 56 L.Ed. 820. Though the Indian’s interest is alienated by judicial decree, the United States may sue to cancel the judgment and set the conveyance aside where it was not a party to the action. Bowling & Miami Investment Co. v. United States, 233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1080; Privett v. United States, 256 U.S. 201, 41 S.Ct. 455, 65 L.Ed. 889; Sunderland v. United States, 266 U.S. 226, 45 S.Ct. 64, 69 L.Ed. 259. Under § 2 of the Act of June 14, 1918 lands partitioned in kind to full-bloods remain restricted. Only if the land is sold at partition sale are the restrictions removed. The governmental interest throughout the partition proceedings is as clear as it would be if the fee were in the United States. State of Minnesota v. United States, 305 U.S. 382, 387-388, 59 S.Ct. 292, 294, 295, 83 L.Ed. 235; Town of Okemah, Okl. v. United States, 10 Cir., 140 F.2d 963. * * *” (Italics ours.) We are of the opinion that the Governmental interest in the instant action is as great as it would be if the fee to the lands involved were in the United States. Indeed, since the United States is suing as a guardian of a dependent nation in discharge of a fiduciary" }, { "docid": "12713455", "title": "", "text": "it may maintain the action. Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820; United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107; United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023; United States v. Board of Com’rs of Grady County, Okl., 10 Cir., 54 F.2d 593. In Heckman v. United States, supra [224 U.S. 413, 32 S.Ct. 431], it is said: “During the continuance of this guardianship, the right and duty of the nation to enforce by all appropriate means the restrictions designed for the security of the Indians cannot be gainsaid. While relating to the welfare of the Indians, the maintenance of the limitations which Congress has prescribed as a part of its plan of distribution is distinctly an interest of the United States. A review of its dealings with the tribe permits no other conclusion. Out of its peculiar relation to these dependent peoples sprang obligations to the fulfillment of which the national honor has been committed. ‘From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress and by this court, whenever the question has arisen.’ United States v. Kagama, 118 U.S. 375, 384, 6 S.Ct. 1109, 30 L.Ed. 228, 231. “This national interest is not to be expressed in terms of property, or to be limited to the assertion of rights incident to the ownership of a reversion or to the holding of a technical title in trust.” In United States v. Board of Com’rs of Grady County, Okl., supra, [54 F.2d 595] in sustaining the right and authority of the United States to maintain an action on behalf of an Indian tribe, the court said: “There was no tenable objection to the general jurisdiction of the District Court. It was expressly conferred by title 28, § 41, subd. 1, of the U." } ]

[ { "docid": "22292494", "title": "", "text": "Alfaro Motors “as a matter of course.” II Initially, we hold that appellants’ claims against the individual defendants herein cannot stand. Although the caption of appellants’ complaint names as defendants Benjamin Ward, Police Commissioner of the City of New York, and Anthony Savarese, a sergeant in the New York City Police Department, the complaint is entirely devoid of any allegations of their personal involvement in denying appellants either a prompt hearing or the additional medallions sought. Having failed to allege, as they must, that these defendants were directly and personally responsible for the purported unlawful conduct, their complaint is “fatally defective” on its face. Black v. United States, 534 F.2d 524, 527-28 (2d Cir.1976); accord Owens v. Coughlin, 561 F.Supp. 426, 428 (S.D.N.Y.1983). Although the district court based its dismissal of the complaint on other grounds, we are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court. Railway Labor Executives’ Ass’n v. Staten Island R.R., 792 F.2d 7, 12 (2d Cir.1986), cert. denied,—U.S.-, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987); Heimbach v. Chu, 744 F.2d 11, 13 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 141 (1985); 6 J. Moore & J. Wicker, Moore’s Federal Practice ¶ 56.-27[1], at 56-1561 (2d ed. 1985). Turning next to appellants’ claims against the City, the first cause of action identified by the district court is that appellants were not afforded a prompt hearing to review the denial of their application for the initial two medallions. The district court did not reach the merits of this claim because it held that appellants had an opportunity to raise the issue in Alfaro I, and having failed to do so, were barred by res judicata principles from relitigating this point. Under recent decisions of this Court, however, failure to assert a claim for monetary damages in a prior New York State Article 78 proceeding does not necessarily preclude, under the doctrine of res judicata, a later § 1983 suit in" } ]

[ { "docid": "17190732", "title": "", "text": "and alleged need for orthopedic sneakers is more analogous to those conditions that have been held to fall short of the constitutional standard, such as a broken pin setting an injured shoulder, Wood v. House wright, 900 F.2d 1332 (9th Cir.1990); a mild concussion and broken jaw, Jones v. Lewis, 874 F.2d 1125 (6th Cir.1989); a kidney stone, Hutchinson v. United States, 838 F.2d 390 (9th Cir.1988); cold symptoms, Gibson v. McEvers, 631 F.2d 95 (7th Cir. 1980); headaches, Dickson v. Colman, 569 F.2d 1310 (5th); cert. denied, 439 U.S. 897, 99 S.Ct. 259, 58 L.Ed.2d 244 (1978); a broken finger, Rodriguez v. Joyce, 693 F.Supp. 1250 (D.Me.1988); toothache, Tyler v. Rapone, 603 F.Supp. 268 (E.D.Pa.1984); or “bowel problems”, Glasper v. Wilson, 559 F.Supp. 13 (W.D.N.Y.1982). Second, even if Nance’s sore feet met the constitutional standard, it is inconceivable that he could sustain this action against the only defendant he has named: Walter C. Kelly, who is superintendent of the prison where Nance is confined. A prerequisite for a § 1983 claim is “personal involvement” by the defendant in the alleged constitutional deprivation. Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). Not only does Nance fail to make any allegation that Kelly knew of him, knew of his sore feet, or knew of the denial of orthopedic shoes, he fails to suggest any other basis on which Kelly might be held liable other than the insufficient one that he was in charge of the prison. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974); see also Neitzke, 109 S.Ct. at 1829 n. 2. Reversal here simply adds extra, useless burdens to the work of the district court. The inevitable result of this case, after the additional paperwork, lawyer’s time, and court time required in the district court by our reversal, will be dismissal. The district judge recognized this when he dismissed under § 1915(d), and we should affirm his wise, practical decision." }, { "docid": "14865014", "title": "", "text": "Coughlin, III, the Commissioner of Corrections, and Harold J. Smith, Superintendent of the Attica Correctional Facility, on December 28, 1983. The district court determined that neither of these defendants had anything to do with the incident which formed the basis of the action; the complaint against these defendants was ordered dismissed. In granting the motion for summary judgment in behalf of the remaining defendant Kerbein, the district court referred to the plaintiff’s contention that he and Kerbein had prior disputes and that the correctional officer had knowledge of threats against the plaintiff’s life. The court’s decision assumed this to be true, but determined that such facts had nothing to do with the assault on the plaintiff by the second inmate Alves. Upon filing of a timely notice of appeal, another panel of this court granted the plaintiff’s motion for leave to proceed in forma pauperis. Since the record presents material issues of fact and a cognizable claim for damages and other relief, we reverse and remand for further proceedings. Discussion The plaintiff attributes the cause of the episode to longstanding hostility between the plaintiff and the defendant Kerbein, who had Ayers in his charge at Ossining and Attica. The guard’s disclaimer of prior knowledge is met by the plaintiff’s claim of intentional scheming and specific knowledge of an impending assault by Alves, to which Kerbein was deliberately indifferent, if not encouraging. Affidavits of other prisoners were supplied, along with a purported copy of the plaintiff’s prior prisoner’s grievance against the custodial officer. In any event, it is clear that more than simple negligence is charged and more than one episode is involved. [A]n isolated omission to act by a state prison guard does not support a claim under section 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequences of his conduct for those under his control and dependent upon him. Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974). The failure of custodial officers to employ reasonable measures to protect an inmate from violence by other prison residents has been considered cruel" }, { "docid": "23008373", "title": "", "text": "Meadow Correctional Facility, did or failed to do. It alleges only that Jones is responsible “for the operations and management of the Great Meadow Correctional Facility, and the conduct of all staff personnel, and the care, custody and safety of all inmates under his immediate jurisdiction.” Absent some personal involvement by Jones in the allegedly unlawful conduct of his subordinates, he cannot be held liable under section 1983. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.1987); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). Dismissal of a section 1983 claim is proper where, as here, the plaintiff “does no more than allege that [defendant] was in charge of the prison.” Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974). The dismissal as to defendant Jones therefore must be affirmed. PENDENT CLAIMS In addition to his federal constitutional claims, Gill invoked the pendent jurisdiction of the district court with respect to his claim that defendants also violated unspecified New York State laws and regulations. Although we do not suggest that the district court abused its discretion in denying this request, we will permit the district court, upon remand, to reassess the propriety of its decision if it so desires. See Andrea Theatres, Inc. v. Theatre Confections, Inc., 787 F.2d 59, 64 (2d Cir.1986). CONCLUSION For the reasons stated above, the judgment of the district court is affirmed as to the defendants Farrell, Rudnickey, Ward, Hunt, Mason, Bump, Corcoran, Wright, Rathbun and Jones; it is reversed and the case is remanded for further proceedings with respect to Gill’s federal constitutional claims against defendants Mooney, DeLu-ca, Kelly, Conners, Denno and Hatch." }, { "docid": "5370682", "title": "", "text": "acts, their own personal involvement in the discrimination. Rizzo, like Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) stands for the principle that § 1983 liability will not attach vicariously by virtue of defendants’ relationship with the actual wrongdoer. See also Arthur v. Nyquist, 573 F.2d 134, 139 (2d Cir.), cert. denied, 439 U.S. 860, 99 S.Ct. 179, 58 L.Ed.2d 169 (1978). Under this well-established principle, the defendants’ own conduct must be shown to have caused the harm suffered by plaintiffs. In short, plaintiffs must establish the “personal involvement” of each of the named defendants. The standards for establishing this involvement are well established in this Circuit. In the case of Williams v. Smith, 781 F.2d 319 (2d Cir.1986), the court reversed the district court’s grant of judgment in favor of the Superintendent of Attica in a suit brought under § 1983 by a prisoner who alleged a violation of due process in his disciplinary hearing. The court found that the Superintendent’s affirmance of the result of the unconstitutional proceeding created the requisite personal involvement to support § 1983 liability. The court detailed the many ways in which a plaintiff could establish the necessary causal link. First, the defendant’s direct participation in the event could create liability. Second, the defendant after learning of the violation, may fail to correct the wrong. Third, a supervisor may be liable for creating a policy or custom under which unlawful practices occur, or for allowing such a policy or custom of which he is aware to continue. Finally, a plaintiff may prove liability by showing that the supervisor acted with “gross negligence” in managing the subordinates personally involved in the unlawful conduct or event. See 781 F.2d at 323. Under the test established by Williams, I find personal involvement of the named defendants sufficient to impose liability. The evidence shows that many in authority at Elmira were aware of the disparity between whites and blacks in some of the housing units, especially the Honor Block, and in some job assignments. Defendant" }, { "docid": "22698998", "title": "", "text": "of discretion). Jones’s description of his religious beliefs could hardly have been clearer in specifying how the denial of access to religious services impinged upon his practice of his religion, and the district court should have considered this evidence. Therefore summary judgment on Jones’s free exercise claim must be reversed. F. Access to the Courts On Jones’s access to the courts claim, the magistrate judge recommended summary judgment for the defendants because Jones “failed to present any evidence indicating that he ha[d] been injured in any way by his inability to participate in ‘law library activities,’ as he must do pursuant to Lewis v. Casey,” 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). This is a correct statement of the law and a proper application. The district court is correct that Jones did not allege injury, such as inability to file a complaint or defend against a charge, stemming from the restrictions on his access to the law library. Therefore summary judgment on Jones’s access to the courts claim was appropriate. G. Additional Issues Raised by the Parties The district court denied Eleventh Amendment immunity to Blanas and held that the County could be subject to liability for Blanas’s actions under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Though Jones’s briefs defend the propriety of these holdings, defendants do not disagree or request reversal. In their briefs, the parties debate the questions whether Blanas may be held liable on a supervisory theory of liability, whether Blanas is entitled to qualified immunity in his personal capacity, and whether the county should be held liable pursuant to Monell. Because the district court did not reach these issues since it found no constitutional violations, we decline to address these issues in the first instance. If and when these issues arise on remand, the district court should address them at that time. IV. CONCLUSION In summary: 1. Jones’s appeal was timely because he was an “inmate confined in an institution” and complied with Rule 4(c). 2. We find that California’s equitable tolling" }, { "docid": "15468579", "title": "", "text": "rules that impinge on inmates’ constitutional rights to be reasonably related to legitimate penological interests. Id. at 89, 107 S.Ct. at 2261. Richardson has cited no support for his contention that the removal of non-legal papers from a prison cell violates the First Amendment. The failure to return the papers to him may constitute negligence, but negligence does not rise to the level of a constitutional violation. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986). Therefore, summary judgment for defendant Block on this claim is granted. Lack of Personal Involvement of Defendant Coughlin Defendant Coughlin seeks summary judgment on all claims against him on the ground that Richardson has shown no personal involvement by him. Richardson contends that Coughlin is liable for ratifying and adopting the punishment without ascertaining whether Richardson’s rights had been violated and for failing to promulgate more specific rules. Richardson has not raised a material issue of fact with respect to any personal involvement in his punishment by defendant Coughlin. Liability under 42 U.S.C. § 1983 requires that the defendant be personally involved in a constitutional deprivation. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989). A plaintiff can show the required personal involvement of a supervisor such as Coughlin by showing that the supervisor 1) directly participated; 2) failed to remedy the wrong after learning of it through a report or appeal; 3) created or continued a policy or custom under which unconstitutional practices occurred; or 4) was grossly negligent in managing the subordinates who caused the violation. Al-Jundi v. Estate of Rockefeller, 885 F.2d at 1066; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). Richardson alleges that Coughlin “ratified and adopted” his punishment. (Plaintiffs Supplement to JPTO.) In support, Richardson offers only the failure of Coughlin to deny, in his answer, the allegation in the amended complaint that “in refusing to reverse the Superintendent’s Hearing, ... Coughlin ratified and adopted the disposition against and punishment of" }, { "docid": "22175853", "title": "", "text": "rights. A plaintiff may recover nominal as well as punitive damages even if a violation of his civil rights causes no actual injury. Farrar v. Cain, 756 F.2d 1148, 1152 (5th Cir.1985); Ustrak v. Fairman, 781 F.2d 573, 581 (7th Cir. 1986). See also Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042,1054, 55 L.Ed.2d 252, 266 (1978); Ganey v. Edwards, 759 F.2d 337, 339 (4th Cir.1985); Madison County Jail Inmates v. Thompson, 773 F.2d 834, 844 (7th Cir.1985). Because Green’s complaints alleged violations of his constitutional rights, for which if proved he could receive at least nominal damages, he presented the district court with a case or controversy sufficient to invoke the court’s jurisdiction. 3. Green’s Specific Claims Boiling down the complaints in these record volumes, we arrive at seven specific claims which deserve discussion, a. Green alleged that the defendants had denied him a reasonable opportunity to challenge his assignment to administrative segregation. The trial court dismissed this claim as not being one for which relief could be granted, citing Young v. Wainwright, 449 F.2d 338, 339 (5th Cir.1971) (“classification of inmates is a matter of prison administration and management with which federal courts are reluctant to inter fere except in extreme circumstances”), and Jones v. United States, 534 F.2d 53, 54 (5th Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 487, 50 L.Ed.2d 586 (1976) (prison officials have broad discretion, free from judicial interference, in classifying prisoners in terms of their custodial status). We agree with the district court that both Young and Jones give prison officials broad discretion in classifying inmates. But when regulations governing the administration of state prisons create a liberty interest in remaining free from the restraints accompanying confinement in administrative confinement, a prisoner is entitled to the minimum requirements of procedural due process. Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871, 74 L.Ed.2d 675, 688 (1983); Mitchell v. Hicks, 614 F.2d 1016, 1018-19 (5th Cir. 1980); Wright v. Enomoto, 462 F.Supp. 397 (N.D.Cal. 1976), summarily aff'd, 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978). Green’s pleadings" }, { "docid": "6802486", "title": "", "text": "of Education Commissioner Richard P. Mills in his personal capacity because Sprint’s Complaint “is devoid of any facts alleging that Commissioner Mills had any personal involvement in the denial of Sprint’s building permit.” Defendants’ Memorandum in Opposition at 24. Because the complaint does not adequately plead defendant Mills’ personal involvement in the alleged violations, plaintiffs claims against him in his individual capacity are dismissed. Where damages are sought in a § 1983 action, the defendant must be responsible for the alleged constitutional deprivation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994); AL-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989). “[T]he general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.” AL-Jundi, 885 F.2d at 1065 (internal quotations omitted). A defendant who occupies a supervisory position may be found personally involved in the deprivation of a plaintiffs constitutionally protected rights in several ways. See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). The defendant may have directly participated in the infraction; the official, after learning of the violation through a report or appeal, may have failed to remedy the wrong; the official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; and lastly, a supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event. Wright, 21 F.3d at 501; Williams, 781 F.2d at 323-24. In addition, supervisory liability may be imposed where an official demonstrates “gross negligence” or “deliberate indifference” to the constitutional rights of a plaintiff by failing to act on information indicating that unconstitutional practices are taking place. Wright, 21 F.3d at 501. In determining the Commissioner of Education’s liability, this Court must look to the complaints allegations concerning Mills’ involvement in the unconstitutional conduct alleged. Id. Sprint has failed to allege that Commissioner Mills was sufficiently personally involved in the denial of its application to install a telecommunications facility on the roof of" }, { "docid": "23365228", "title": "", "text": "pursuant to Fed.R.Civ.P. 54(b), permitting Al-Jundi the opportunity for immediate appellate review of those claims, and in particular “the issue of the ... Governor’s supervisory liability.” This appeal ensued, and is apparently limited to Al-Jundi’s section 1983 claim under the eighth amendment and the fourteenth amendment’s due process clause. For the reasons that follow, we affirm. DISCUSSION In granting the Estate’s motion for summary judgment, the district court determined that under the standard articulated by the Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 322-27, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986), Al-Jundi did not come forward with sufficient evidence to raise a genuine issue of material fact. We agree with that determination. Section 1983 imposes liability for “conduct which ‘subjects, or causes to be subjected’ the complainant to a deprivation of right secured by the Constitution and laws,” Rizzo v. Goode, 423 U.S. 362, 370-71 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976) (quoting 42 U.S.C. § 1983); see Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). As an initial matter, we note that a section 1983 claim for damages against a state official can only be asserted against that official in his or her individual capacity. Cf. Will v. Michigan Dep’t of State Police, — U.S. -, 109 S.Ct. 2304, 2311-12 105 L.Ed.2d 45 (1989). Therefore, this appeal is tenable only insofar as Rockefeller is named in his personal capacity. Where damages are sought in a section 1983 action, the defendant must be responsible for the alleged constitutional deprivation: “[T]he general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.” Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); see Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (per curiam) (plaintiff must demonstrate “personal involvement” of state commissioner of corrections and superintendent of prison, not mere “linkage in the prison chain of command”)." }, { "docid": "18450647", "title": "", "text": "of an editorial entitled “Prisoner Threats Could Hamper Reforms” which appeared in the Courier-Express on December 4, 1976. After reviewing the claims made by plaintiffs, I have concluded that this action is patently frivolous and must be dismissed pursuant to 28 U.S.C. § 1915(d). At the outset, the claim against the prison guards’ union is clearly not cognizable here since the union is not a “person.” See Monell v. Dept. of Social Services, 532 F.2d 259, 262-63 (2d Cir. 1976). Even read liberally, the statement attributed to Mr. Wert cannot be said to constitute an abuse of prisoners by corrections personnel. Plaintiffs’ pleadings indicate that this was an isolated instance where a prison guard (who is also president of the guards’ union) expressed a personal opinion to the news media that inmates intended “to do their thing” in support of proposed prison reform legislation and that the inmates might not be peaceful in doing it. This alone fails to support a claim under 42 U.S.C. § 1983 that words or actions of corrections personnel posed an immediate threat to the safety and welfare of inmates or that supervisory personnel directly abused inmates. See, e. g., Holt v. Hutto, 363 F.Supp. 194, 215 (E.D.Ark.1973), modified sub nom. Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974). Plaintiffs have not alleged that disturbances occurred at Attica or that anyone was injured as a direct result of Mr. Wert’s statement to the press. Nor is there any indication in the complaint of an evil intent or recklessness on Mr. Wert’s part, or even deliberate indifference to the consequences of his conduct for the inmates for whom he was responsible. See Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974); Williams v. Field, 416 F.2d 483 (9th Cir. 1969), cert. denied, 397 U.S. 1016, 90 S.Ct. 1252, 25 L.Ed.2d 431 (1970); Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970). For these same reasons, I must con-elude that the complaint is also frivolous with respect to Commissioner Ward and Superintendent Smith, who are charged with having condoned Mr. Wert’s words" }, { "docid": "23365230", "title": "", "text": "See generally City of Canton, Ohio v. Harris, — U.S. -, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989). Since liability cannot attach under the doctrine of respondeat superior, we must look instead to the extent of Rockefeller’s involvement in the unconstitutional conduct alleged. Rockefeller’s part in the decision to retake the prison and rescue the hostages, and in the formulation and implementation of the plan to carry out that decision, simply did not rise to the level of personal involvement necessary to establish liability under section 1983. True, the Governor was kept abreast of the events that transpired at the prison throughout the crisis; but that alone is not sufficient to hold him responsible for any wrongs committed by others. “The fact that he was in a high position of authority is an insufficient basis for the imposition of personal liability.” McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978); see Turpin v. Mailet, 579 F.2d 152, 167 (2d Cir.) (in banc) (“notions of respondeat superior have not been incorporated into § 1983 to permit the imposition of liability in damages upon supervisory personnel for the wrongs of their subordinates”), cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978). Rockefeller’s role in the entire affair was limited to his ratification of Oswald’s decisions to abandon negotiations, order the state police to formulate a plan to regain control of the prison, and approve commencement of the actual retaking. Such “involvement” simply is not sufficiently related to the alleged unlawful conduct. See Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974) (plaintiff must allege that defendant authorized particular conduct said to be unlawful). Rockefeller did not engage in or authorize any of the brutalities alleged. That Rockefeller delegated authority to the appropriate officials in the state command in no way suggests that he should be liable to pay damages for the events that ultimately occurred allegedly as a result of unwarranted implementing decisions of these officials. Nor do Rockefeller’s recommendations regarding certain safety measures to be" }, { "docid": "18450648", "title": "", "text": "an immediate threat to the safety and welfare of inmates or that supervisory personnel directly abused inmates. See, e. g., Holt v. Hutto, 363 F.Supp. 194, 215 (E.D.Ark.1973), modified sub nom. Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974). Plaintiffs have not alleged that disturbances occurred at Attica or that anyone was injured as a direct result of Mr. Wert’s statement to the press. Nor is there any indication in the complaint of an evil intent or recklessness on Mr. Wert’s part, or even deliberate indifference to the consequences of his conduct for the inmates for whom he was responsible. See Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974); Williams v. Field, 416 F.2d 483 (9th Cir. 1969), cert. denied, 397 U.S. 1016, 90 S.Ct. 1252, 25 L.Ed.2d 431 (1970); Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970). For these same reasons, I must con-elude that the complaint is also frivolous with respect to Commissioner Ward and Superintendent Smith, who are charged with having condoned Mr. Wert’s words and actions. In addition, Commissioner Ward and Superintendent Smith cannot be held liable in a § 1983 action for any of Mr. Wert’s actions merely because of the fact that they are Mr. Wert’s superiors. See Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973). Defendants Lynch and Conners cannot be held liable under 42 U.S.C. §§ 1983 or 1985 for doing that which is their constitutionally-protected right as newsmen. There is a well-entrenched tradition in this country that freedom of expression should not be limited or infringed by either public or private authority. This basic and essential principle is articulated in the first amendment and has been affirmed by a long series of Supreme Court decisions. See, e. g., Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957);" }, { "docid": "18578460", "title": "", "text": "act of an official causing unintended loss of or injury to life, liberty or property.” Daniels v. Williams, — U.S. -, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986) (emphasis in original). That case explicitly did not consider whether something less than intentional conduct, such as recklessness or gross negligence, is enough to trigger the protections of the Due Process Clause. Id., 106 S.Ct. at 667 n. 3. In the absence of further guidance, we must adhere to our recently restated position that [a]n isolated omission to act by a state prison guard does not support a claim under section 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequences of his conduct for those under his control and dependent upon him. Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) (quoting Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974)). Under this test, we cannot say that Bass can prove no set of facts in support of a claim of deliberate indifference on the part of some defendants. The claim that the block had been “run” by inmates hostile to Rhoden, the knowledge of corrections officers of this ongoing hostility, the dispute over Rhoden’s location in the prison, and the presence of weapons are enough to raise questions of fact as to what the correctional officers knew and when they knew it. Bass’ allegations are thin, but the liberal rules regarding pro se pleadings compel us to hold that Bass has stated a claim that may, with the aid of discovery, show deliberate indifference on the part of correctional officials to pending violence in Block D-3. However, respondeat superior liability does not lie against corrections officers in Section 1983 actions. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). A plaintiff must thus allege a tangible connection between the acts of a defendant and the injuries suffered. Under that standard, plaintiff has failed to allege such acts by defendants Jackson and Flood. His allegations with regard to the inadequacy of" }, { "docid": "18573587", "title": "", "text": "GEORGE C. PRATT, Circuit Judge: These two appeals have been consolidated by this court sua sponte pursuant to Fed.R.App.P. 3(b) for purposes of this opinion. In one of the appeals, Jones v. Smith, et al., we granted Jones leave to appeal in forma pauperis in three of sixteen separate actions brought under 42 U.S.C. § 1983 to challenge various aspects of the conditions of his prison confinement. All of the complaints had been dismissed by the United States District Court for the Western District of New York. Jones’s three actions that we address here are brought respectively against defendant Smith, who is Superintendent of the Attica Correctional Facility, defendant O’Connor, who was the presiding officer at Jones’s prison disciplinary hearing, and defendant Cousins, who is in charge of the mail room at Attica. We note that Jones’s action against Smith was also nominally brought against Thomas A. Coughlin, III, as New York State Commissioner of Corrections. However, Jones’s allegations in that complaint refer to only Smith, and, therefore, we deem the complaint to be brought against only Smith. In the other appeal, Payne v. Coughlin, Payne appeals from a judgment of the United States District Court for the Southern District of New York dismissing his complaint against various prison officials. Both Jones and Payne are currently incarcerated in the New York State prison system. Both aré prolific pro se litigators. Here, they separately challenge the New York Department of Correctional Services’s directive 4422, which regulates, among other things, the amount and type of free prisoner mail. They assert that directive 4422 denies them their constitutional right of access to the courts, as that right was construed in Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). Appellants’ claims were summarily dismissed by their respective district courts. Because substantial questions concerning directive 4422 remain to be answered in light of our remand in Chandler v. Coughlin, 763 F.2d 110 (2d Cir.1985), we remand appellants’ directive 4422 claims to their respective district courts for further proceedings. The dismissals in Jones v. Smith, W.D. Docket No. CIV-83-1287," }, { "docid": "14888107", "title": "", "text": "Commissioner of the New York State Department of Correctional Services at the time of the events in suit, contends that the plaintiffs complaint must be dismissed against him because he was not personally involved in the alleged violation of plaintiffs federal constitutional rights. According to this defendant, the plaintiff improperly seeks to hold him liable for damages under the doctrine of re-spondeat superior, which is unavailable in actions brought under 42 U.S.C. § 1983. See Monell v. Department of Social Servs., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (A defendant’s personal involvement in the alleged constitutional violation is a prerequisite to the imposition of damages.). “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of [monetary] damages under § 1983.’ Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotations and citations omitted). A defendant may be personally involved in a constitutional deprivation in one of the following ways: [1] The defendant may have directly participated in the infraction. [2] A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong. [3] A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. [4] [A] supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event. [5] [Supervisory liability may be imposed where an official demonstrates “gross negligence” or “deliberate indifference” to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place. Wright, 21 F.3d at 501; see Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986) (citations omitted); McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir.1983) (holding that defendant Coughlin had actual or constructive notice of unconstitutional procedures, and therefore could not escape personal responsibility). A review of the plaintiffs complaint reveals it" }, { "docid": "5016157", "title": "", "text": "will be no individual liability. Rizzo v. Goode, 423 U.S. 362, 371-81, 96 S.Ct. 598, 604-09, 46 L.Ed.2d 561 (1976). “[S]ome personal responsibility of the defendant is required.” Al-Jundi, 885 F.2d at 1065, quoting, Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985). Accordingly, if the Commissioner of Corrections is not sufficiently involved in an alleged constitutional violation, he will not be held personally liable for the unlawful activity at issue. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978); Pacheco v. Comisse, 897 F.Supp. 671, 678 (N.D.N.Y.1995). As the Second Circuit recognized in Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986): A defendant may be personally involved in a constitutional deprivation within the meaning of 42 U.S.C. § 1983 in several ways. The defendant may have directly participated in the infraction. A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong,____ A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. Lastly, a supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event,____(internal citations omitted) See also Al-Jundi, 885 F.2d at 1066 (“a supervisory official may be personally liable if he or she has actual or constructive notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference by failing to act.”) (internal quotations omitted); Pacheco, 897 F.Supp. at 678. Applying these standards the Court finds that Coughlin cannot be held liable for damages under section 1983 because the plaintiff is unable to establish that Coughlin had any personal responsibility for the events alleged. In his combined memorandum of law-affidavit in opposition to the State Defendants’ motion, the only evidence Mandala cites in support of his position with respect to Coughlin are some" }, { "docid": "5370681", "title": "", "text": "dismissed because plaintiffs have failed to show any liability on the part of the named defendants. These defendants claim that there is no proof that they were personally responsible for any acts of discrimination. Even if plaintiffs have established some acts of discrimination by lower-level employees at Elmira, those acts cannot be attributed to the named defendants, Miles, Novak and McLaughlin. Defendants claim that plaintiffs’ complaint must be dismissed because plaintiffs have failed to establish a causal link between the discriminatory acts and each of the named defendants. Relying on Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), defendants claim that plaintiffs’ complaint must be dismissed because it seeks to impose liability on defendants for acts of subordinates and that such liability may not be imposed in § 1983 actions on a theory of respondeat superi- or. The flaw in defendants’ argument is that plaintiffs do not seek merely to impose liability vicariously because of the acts of subordinates. Rather, plaintiffs seek to impose liability on defendants for their own acts, their own personal involvement in the discrimination. Rizzo, like Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) stands for the principle that § 1983 liability will not attach vicariously by virtue of defendants’ relationship with the actual wrongdoer. See also Arthur v. Nyquist, 573 F.2d 134, 139 (2d Cir.), cert. denied, 439 U.S. 860, 99 S.Ct. 179, 58 L.Ed.2d 169 (1978). Under this well-established principle, the defendants’ own conduct must be shown to have caused the harm suffered by plaintiffs. In short, plaintiffs must establish the “personal involvement” of each of the named defendants. The standards for establishing this involvement are well established in this Circuit. In the case of Williams v. Smith, 781 F.2d 319 (2d Cir.1986), the court reversed the district court’s grant of judgment in favor of the Superintendent of Attica in a suit brought under § 1983 by a prisoner who alleged a violation of due process in his disciplinary hearing. The court found that the Superintendent’s" }, { "docid": "23008371", "title": "", "text": "(1976); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977). Prison officials are more than merely negligent if they deliberately defy the express instructions of a prisoner’s doctors. Martinez v. Mancusi, 443 F.2d 921, 924 (2d Cir.1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1202, 28 L.Ed.2d 335 (1971). If defendants deliberately interfered with Gill’s medically prescribed treatment solely for the purpose of causing him unnecessary pain, they may be subject to liability despite the likelihood that he suffered no permanent injuries. See Robison v. Via, 821 F.2d 913, 924 (2d Cir.1987). Gill also alleges an Eighth Amendment claim against defendants Kelly and Conners, prison nurses, for refusing to admit him to the hospital ward despite his claims of dizziness and numbness in his left arm and leg. The nurses are alleged to have told Gill’s escort officer “he is not staying in the hospital, because all he causes is problems for us and the administration up front.” The precise meaning of that statement will require further development of the facts. If the nurses believed that Gill had caused problems by feigning illnesses and therefore were refusing him admission in the belief that he was not ill, their error was at most a negligent professional judgment. Estelle v. Gamble, supra, 429 U.S. at 106, 97 S.Ct. at 292. Dismissal of the claim also would be proper if the nurses were referring to problems with Gill’s behavior that made it difficult or impossible for him to be treated effectively. Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir.1986). Gill may have a valid claim for relief, however, if the nurses refused him necessary medical attention as a form of punishment for misconduct unrelated to his medical condition or treatment. Archer v. Dutcher, 733 F.2d 14, 17 (2d Cir.1984); Cruz v. Ward, 558 F.2d 658, 662 (2d Cir.1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978). The dismissal of the claims against those two defendants therefore is reversed for further proceedings. SUPERVISORY LIABILITY Gill’s complaint is silent as to anything which defendant Jones, the Superintendent of the Great" }, { "docid": "23008372", "title": "", "text": "that Gill had caused problems by feigning illnesses and therefore were refusing him admission in the belief that he was not ill, their error was at most a negligent professional judgment. Estelle v. Gamble, supra, 429 U.S. at 106, 97 S.Ct. at 292. Dismissal of the claim also would be proper if the nurses were referring to problems with Gill’s behavior that made it difficult or impossible for him to be treated effectively. Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir.1986). Gill may have a valid claim for relief, however, if the nurses refused him necessary medical attention as a form of punishment for misconduct unrelated to his medical condition or treatment. Archer v. Dutcher, 733 F.2d 14, 17 (2d Cir.1984); Cruz v. Ward, 558 F.2d 658, 662 (2d Cir.1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978). The dismissal of the claims against those two defendants therefore is reversed for further proceedings. SUPERVISORY LIABILITY Gill’s complaint is silent as to anything which defendant Jones, the Superintendent of the Great Meadow Correctional Facility, did or failed to do. It alleges only that Jones is responsible “for the operations and management of the Great Meadow Correctional Facility, and the conduct of all staff personnel, and the care, custody and safety of all inmates under his immediate jurisdiction.” Absent some personal involvement by Jones in the allegedly unlawful conduct of his subordinates, he cannot be held liable under section 1983. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.1987); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). Dismissal of a section 1983 claim is proper where, as here, the plaintiff “does no more than allege that [defendant] was in charge of the prison.” Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974). The dismissal as to defendant Jones therefore must be affirmed. PENDENT CLAIMS In addition to his federal constitutional claims, Gill invoked the pendent jurisdiction of the district court with respect to his claim that defendants also violated unspecified New York State laws and regulations. Although we do not suggest that the district" }, { "docid": "23365231", "title": "", "text": "(“notions of respondeat superior have not been incorporated into § 1983 to permit the imposition of liability in damages upon supervisory personnel for the wrongs of their subordinates”), cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978). Rockefeller’s role in the entire affair was limited to his ratification of Oswald’s decisions to abandon negotiations, order the state police to formulate a plan to regain control of the prison, and approve commencement of the actual retaking. Such “involvement” simply is not sufficiently related to the alleged unlawful conduct. See Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974) (plaintiff must allege that defendant authorized particular conduct said to be unlawful). Rockefeller did not engage in or authorize any of the brutalities alleged. That Rockefeller delegated authority to the appropriate officials in the state command in no way suggests that he should be liable to pay damages for the events that ultimately occurred allegedly as a result of unwarranted implementing decisions of these officials. Nor do Rockefeller’s recommendations regarding certain safety measures to be followed during the operation and instructions to the rescue team not to use force unless necessary imply the requisite personal involvement or responsibility. Of course, as Al-Jundi observes, even though “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983,” Williams v. Smith, 781 F.2d at 323 (quoting McKinnon, 568 F.2d at 934), direct participation is not always necessary. Indeed, a supervisory official may be personally liable if he or she has “actual or constructive notice of unconstitutional practices and demonstrates ‘gross negligence’ or ‘deliberate indifference’ by failing to act.” Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.1989); see Williams v. Smith, 781 F.2d at 323-24 (supervisory liability attaches where official “grossly negligent in managing subordinates who caused the unlawful condition or event”); cf. Harris, 109 S.Ct. at 1204-05, 1206 (municipality liable only where the failure to train employees amounts to a “deliberate indifference” to the constitutional rights of its inhabitants). Based on this standard of supervisory responsibility, Al-Jundi urges that the proper inquiry is" } ]

[ { "docid": "6012129", "title": "", "text": "262-63, 92 S.Ct. at 498-99, and that Herrera is free to renew his motion for specific performance on remand. If there was no plea agreement, Herrera’s rights were not violated by the Government’s insistence that further plea negotiations be in writing. Plea bargaining is not a constitutional right; the Government can refuse to bargain altogether, Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977), and can thus cut off or limit negotiations if it chooses to do so. Neither the breach of a plea bargain nor the decision to terminate plea negotiations constitutes vindictive prosecution. REVERSED AND REMANDED. . The charges stemmed from an alleged scheme to convert to the defendants’ own use some $5.5 million in union health insurance funds. Had Herrera been found guilty on all counts, he could have been sentenced to over fifty years in prison. . Fed.R.Crim.P. 11(e)(1)(C) provides that the Government may, as part of a plea bargain, “agree that a specific sentence is the appropriate disposition of the case.” When such an agreement has been made the trial court may accept or reject the whole, but it may not accept the defendant’s guilty plea and impose a sentence greater than that agreed upon. Fed. R.Crim.P. 11(e)(2), (3). . The Government asserts in its brief that it did not agree to make any recommendation if Herrera pled guilty to a misdemeanor. The court below found, however, that the Government “offered to grant the defendant the right to plead to a misdemeanor with a recommended sentence ... of probation.” This finding is not contradicted by any of the Government’s affidavits, nor did the Government object to it in open court. . The court stated that it had a policy of not allowing the Government to agree to a sentence under Fed.R.Crim.P. 11(e)(1)(C). The court then held that Herrera had failed to prove that the Government violated a plea agreement. Finally, the court informed Herrera that he had the option “as I understand the [Government’s plea] offer, to plead to a misdemeanor with the Government’s recommendation of probation ... or" } ]

[ { "docid": "16293752", "title": "", "text": "that provided for in the plea agreement,” and the House affirmed the committee’s action by rejecting on the floor an amendment offered to restore the Supreme Court’s version of the rule. The Senate accepted the House’s version of the rule. See 121 Cong.Rec. 23322 (July 17, 1975) (discussion of legislative history of the rule). By deleting the Supreme Court’s “more favorable to the defendant” language, Congress evidenced its intent to require a district court to sentence a defendant in accordance with the plea agreement. United States v. Semler, 883 F.2d 832, 833-34 (9th Cir.1989). Thus, Chief Judge Parker correctly determined that, having accepted the plea agreement between Cu-navelis and the Government, he was bound by its terms. Obstruction of Justice Enhancement The Sentencing Guidelines provide that “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution or sentencing of the instant offense, [the district court shall] increase the offense level by 2 levels.” U.S.S.G. § 3C1.1 (Nov. 1991). The Guidelines caution that, “[i]n applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant.” Id., comment (n. 1). We have interpreted this application note as “ ‘instructing] the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction.’ ” United States v. Matos, 907 F.2d 274, 276 (2d Cir.1990) (quoting United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989)); accord United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st Cir.1991); United States v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert. denied, — U.S.-, 111 S.Ct. 394, 112 L.Ed.2d 403 (1990); United States v. Wallace, 904 F.2d 603, 605 (11th Cir.1990). This standard is obviously different — and more favorable to the defendant — than the preponderance-of-evidenee standard a district court applies in determining whether to grant a suppression motion. See United States v. Thompson, 962 F.2d 1069, 1071 (D.C.Cir.1992) (standard of proof in applying section 3C1.1" }, { "docid": "3046124", "title": "", "text": "Id. 11(e)(2). If the district court accepts the plea agreement, then the court’s judgment and sentence shall embody the disposition provided for in the plea agreement. Id. 11(e)(3). The rules contain no provision for the district court to modify a Rule 11(e)(1)(C) plea agreement, such as Mukai’s agreement, and this court has stated that “Rule 11(e)(3) prohibits a district court from sentencing a defendant to a sentence less severe than that provided for in the plea agreement accepted by the court.” United States v. Semler, 883 F.2d 832, 833 (9th Cir.1989). Despite the general prohibition against modifying Rule 11(e)(1)(A) or (C) plea agreements, the district court, relying on our decision in United States v. Fernandez, 960 F.2d 771 (9th Cir.1992) (per curiam), nonetheless concluded that in this circuit the general rule will give way in a ease presenting “exceptional circumstances.” In Fernandez, we stated that: When a plea agreement is made pursuant to Fed.R.Crim.P. 11(e)(1)(C), the trial court may accept or reject the agreement, but, absent exceptional circumstances, it may not accept the defendant’s guilty plea and impose a sentence greater, United States v. Herrera, 640 F.2d 958, 960 n. 2 (9th Cir.1981) (dictum); United States v. Burruezo, 704 F.2d 33, 38 (2d Cir.1983), or less severe, Semler, 883 F.2d at 833, than that agreed upon. 960 F.2d at 773 (emphasis added). Neither Fernandez nor the first two cases cited in support of this proposition, Herrera and Burruezo, discuss exceptional circumstances. The phrase therefore apparently refers to a standard announced in Semler, the third cited decision. In Semler, we suggested that in an “exceptional ease” the district court, after initially sentencing a defendant, may réduce the sentence in response to a Rule 35(b) motion. Semler, 883 F.2d at 835. Thus, absent a Rule 35(b) motion, the law in this circuit has not previously recognized “exceptional circumstances” as a basis for disregarding the sentence contained in a plea agreement under Rule 11(e)(1)(C). Moreover, there exists no reason to implement such an exception. The time for the court to evaluate whether the impact of exceptional circumstances renders the agreement inappropriate is prior" }, { "docid": "16121367", "title": "", "text": "ORDER The memorandum for this case filed December 10, 1991 is redesignated a per cu-riam opinion. OPINION PER CURIAM: Roman A. Fernandez appeals his conviction following entry of a guilty plea to importation of cocaine, in violation of 21 U.S.C. §§ 952, 960. Fernandez contends the district court erred by stating that it was accepting a plea agreement pursuant to Fed.R.Crim.P. 11(e)(1)(C) but nonetheless rejecting the specific prison term agreed to by the parties. We have jurisdiction under 28 U.S.C. § 1291 and we reverse the conviction and remand to allow Fernandez to withdraw his guilty plea or to permit the district court to accept the plea agreement in its entirety and sentence Fernandez accordingly. We review de novo a district court’s interpretation of the law. United States v. Semler, 883 F.2d 832, 833 (9th Cir.1989). We review for clear error a district court’s construction of a plea agreement. United States v. Keller, 902 F.2d 1391, 1393 (9th Cir.1990). “Plea agreements are subject to contract-law standards of interpretation.” United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir.1986) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979)), cert. denied, 479 U.S. 819, 107 S.Ct. 80, 93 L.Ed.2d 35 (1986). To determine whether a sentence complies with the terms of a plea agreement, we look to what was reasonably understood by the defendant when he entered his plea. Id. The plea agreement in the instant case was made “[pjursuant to Rule 11(e)(1)(C).” Plea Agreement at 1. The plea agreement contained five paragraphs detailing the government’s and Fernandez’s obligations. Paragraph Five provided: The parties agree that, with respect to the imposition of a term of imprisonment, a sentence of not more than six (6) years is the appropriate disposition of this case. This sentence is within the sentencing guidelines. If the defendant does not cooperate as set forth in paragraphs 2, 3, and 4, this agreement shall be deemed null and void. Plea Agreement at 4, 115. Paragraphs Two, Three, and Four required Fernandez to cooperate with the government in uncovering further criminal activities by Fernandez and others and also" }, { "docid": "13530178", "title": "", "text": "Cir.1977); United States v. Sarubbi, 416 F.Supp. 633, 637 (D.N.J.1976). The 1979 amendment to subsection (e)(2) adopted this majority view with the caveat that the defendant be advised that the agreement only contemplated a non-binding recommendation or request, and that if the defendant still wished to plead guilty, he might not be able to withdraw his plea later if the sentence was less favorable than the recommendation or request. See advisory committee note, supra, 18 U.S.C.App. at 1665. See also 1 C. Wright, Federal Practice and Procedure § 175.1 at 648-50 (1982). The plea agreement between Burruezo and the government may have been viewed in either of two ways by the court. First, the judge might have believed the agreement to be a subsection (e)(1)(A) and (1)(C) agreement, explicitly requiring the court’s consent, and mandating a concurrent sentence on the New Jersey count with a maximum ten-year sentence of imprisonment and dismissal of the remaining counts. On this theory, the judge was obligated to accept or reject the plea agreement either when it was first proffered to him in June 1982 or following his evaluation of the presentence report. If the judge accepted the plea agreement, under subsection (e)(2) and (3) he was required to so inform Burruezo, see United States v. Blackwell, supra, 694 F.2d at 1338, and not “impose a sentence greater than that agreed upon.” United States v. Mack, 655 F.2d 843, 847 n. 4 (8th Cir.1981), quoting United States v. Herrera, 640 F.2d 958, 960 n. 2 (9th Cir.1981). However, if the judge rejected the agreement, under subsections (e)(2) and (4) he was required to so inform Burruezo and allow him the opportunity to withdraw his pleas of guilty. United States v. Hammerman, 528 F.2d 326, 332 (4th Cir.1975). The judge may also have believed the agreement to constitute only a recommendation under subsection (e)(1)(B). In that event, the judge was obligated to inform Burruezo pursuant to subsection (e)(2) that he deemed the agreement terms to be only a recommendation and if the court chose not to accept the recommendation, the plea could not later be" }, { "docid": "16293750", "title": "", "text": "dismissal of other charges; or (B) make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or (C) agree that a specific sentence is the appropriate disposition of the case. Fed.R.Crim.P. 11(e) (1991). The Rule further explains that “[i]f the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement, .... If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.” Id. Thus, the rule plainly contemplates that plea agreements executed pursuant to subdivision (e)(1)(A) or (C) — in contrast to the precatory nature of agreements made under subdivision (e)(1)(B)— are binding on the district court. The district court may accept or reject an (A) or (C) plea, but it may not modify it. See United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (per curiam); see also United States v. Bohn, 959 F.2d 389, 391 (2d Cir.1992) (“[i]f [district judge] accepts the bargain ... he must conform the sentence to that bargain”); Fed.R.Crim.P. 11 advisory committee’s note (1991) (“critical to a type (A) or (C) agreement is that the defendant receive the contemplated charge dismissal or agreed-to sentence”). Our reading of the Rule is supported by the history of its adoption: The legislative history of 11(e)(3) shows that Congress wished to preclude a district court from accepting a plea agreement which provides for a specific sentence and then imposing a more lenient sentence than that provided for in the plea agreement. The version of 11(e)(3) proposed by the Supreme Court in 1974 stated that “the court shall inform the defendant that it will embody in the ... sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.” The House Judiciary Committee then deleted the language “or another disposition more favorable to the defendant than" }, { "docid": "7557467", "title": "", "text": "maximum five-year period. Finally, as an alternative basis for our decision, we hold that Gammarano waived his right to object to the five-year probation term. We recognize that “no rule of federal procedure obliges a defendant to make a contemporaneous objection” to a putative plea agreement violation. United States v. Corsentino, 685 F.2d 48, 50 (2d Cir.1982). Courts therefore are hesitant to conclude that a defendant has waived his plea agreement claim. United States v. Paradiso, 689 F.2d at 30. Yet, we have stated that “in some circumstances the impending violation of a plea agreement may be so clearly anticipated that a defendant’s failure to object ... can fairly be taken to be a waiver of compliance with the agreement.” United States v. Corsentino, 685 F.2d at 50. Herein, Gammarano waited over two years, until he saw that Judge Neaher might revoke probation, to complain. He also used the possibility of probation revocation as a basis for seeking leniency on the 1982 charges in the sentencing hearing before Judge Nickerson prior to filing the instant petition. This combination of circumstances warrants a holding that Gammarano waived his sentencing claim under the plea agreement. See id. III. CONCLUSION For the foregoing reasons, we affirm the judgment of conviction. . Gammarano also cites United States v. Burruezo, 704 F.2d 33 (2d Cir.1983) in support of his position. In United States v. Burruezo, this court vacated a guilty plea on direct appeal because it was unclear on the record whether the district judge had accepted or rejected the proposed plea agreement. The court noted that if the district judge intended to reject the plea agreement, he should have notified the defendant and given him an opportunity to withdraw his plea pursuant to Fed.R.Crim.P. 11(e). Id. at 38. Herein, Judge Neaher explicitly stated that he was accepting the plea agreement and was sentencing in accordance therewith. Contrary to Gammarano's assertion, in the instant case there does not exist, as there did in United States v. Burruezo, any ambiguity about whether the district judge accepted the plea agreement. . For this reason, we need not" }, { "docid": "23334542", "title": "", "text": "less favorably toward the defendant than the plea agreement contemplated. Fed.R.Crim.P. 11(c)(5). Rule 11 thus contemplates that the district court’s rejection of a plea agreement allows the defendant, not the court, to make the next decision with respect to the status of the plea — ie., whether to withdraw the plea and proceed to trial, or persist in the plea and risk a more severe sentence under the Sentencing Guidelines. “Plea agreements are contractual by nature and are measured by contract law standards.” United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.2002). The Rules of Criminal Procedure explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side .... If the court accepts the agreement and thus the Government’s promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government’s promised performance, then the [plea] agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent. Hyde, 520 U.S. at 677-78, 117 S.Ct. 1630. Consistent with these contractual principles, Rule 11 states that upon rejection of the plea agreement, the defendant may withdraw his plea. The only course available for the district court, upon rejecting the plea agreement, is to advise the defendant of his rights, including the right to withdraw the guilty plea. See United States v. Reyes, 313 F.3d 1152, 1156 (9th Cir.2002) (“[T]he options for the district court were either to accept the plea agreements and sentence the defendants accordingly or to reject the agreements and allow the defendants to withdraw their pleas.”); United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (holding that the “district court erred by failing to either accept the plea agreement and sentence [the defendant] accordingly or to reject the plea agreement and allow [him] to withdraw his guilty plea”). And should the defendant decide to maintain his" }, { "docid": "23011091", "title": "", "text": "that rejection of a stipulated sentence constitutes rejection of the entire plea agreement, thereby triggering the mechanisms in current Rule 11(c)(5). See, e.g., United States v. Reyes, 313 F.3d 1152, 1157 (9th Cir.2002) (holding, where district court stated that it accepted a plea agreement “ ‘as in every detail and part’ ” but imposed a longer sentence than contemplated by the plea agreement, that “the district court did not ‘accept’ the plea agreement,” but rather “rejected the plea and substituted its own view of the appropriate sentence under the guidelines”); United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994) (“The rules contain no provision for the district court to modify a [former] Rule 11(e)(1)(C) plea agreement....”); United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (per curiam) (holding that the district court “could not both accept the plea agreement made pursuant to [former] Rule 11(e)(1)(C), which calls for a specific sentence, and reject the sentencing provision of that agreement”). Rule 11 clearly vests district courts with the discretion to accept or reject plea agreements, including those that contain a stipulated sentence term. Fed.R.Crim.P. 11(c)(3)(A). The rule also specifies procedures the district court must follow once it accepts or rejects a plea agreement. Fed.R.Crim.P. 11(c)(4), (c)(5). However, nowhere does Rule 11 define the criteria by which a district court should exercise the discretion the rule confers, or explain how a district court should determine whether to accept a plea agreement. Although the rule on its face offers no guidance on this point, our case law clearly establishes that the broad discretion granted by Rule 11 is not unbounded. And, while we have not previously considered the precise issue presented by this petition&emdash;whether a district court may reject a plea agreement on the ground that it is “unreasonable as a matter of law”-our cases provide the necessary guidance to resolve this question. In United States v. Miller, 722 F.2d 562 (9th Cir.1983), the defendant initially pleaded not guilty to three counts of armed bank robbery before pleading guilty to one count in exchange for dismissal of the remaining two. 722" }, { "docid": "3046125", "title": "", "text": "plea and impose a sentence greater, United States v. Herrera, 640 F.2d 958, 960 n. 2 (9th Cir.1981) (dictum); United States v. Burruezo, 704 F.2d 33, 38 (2d Cir.1983), or less severe, Semler, 883 F.2d at 833, than that agreed upon. 960 F.2d at 773 (emphasis added). Neither Fernandez nor the first two cases cited in support of this proposition, Herrera and Burruezo, discuss exceptional circumstances. The phrase therefore apparently refers to a standard announced in Semler, the third cited decision. In Semler, we suggested that in an “exceptional ease” the district court, after initially sentencing a defendant, may réduce the sentence in response to a Rule 35(b) motion. Semler, 883 F.2d at 835. Thus, absent a Rule 35(b) motion, the law in this circuit has not previously recognized “exceptional circumstances” as a basis for disregarding the sentence contained in a plea agreement under Rule 11(e)(1)(C). Moreover, there exists no reason to implement such an exception. The time for the court to evaluate whether the impact of exceptional circumstances renders the agreement inappropriate is prior to acceptance and, as the court explained in Sender, if the court later finds the disposition in the plea agreement objectionable it “should not reduce the sentence unilaterally in such eases, but rather should withdraw its acceptance of the plea agreement and permit the parties to renegotiate a more appropriate sentence or opt for trial.” Semler, 883 F.2d at 835. The district court erred in concluding “exceptional circumstances” might justify disregarding the terms of the plea agreement that it had accepted. Mukai offers an alternative basis for affirming her sentence. Relying on the general proposition that “[i]n section 5K1.1 departures ... the government has no control over the extent of the departure,” United States v. Udo, 963 F.2d 1318, 1319 (9th Cir.1992), Mukai argues that the government’s § 5K1.1 motion gave the district court the authority to depart downward as much as it deemed appropriate without regard for the terms of the agreement. The Second Circuit has considered the conflict between the sentencing court’s usual discretion to determine the appropriate extent of departure in response" }, { "docid": "23011090", "title": "", "text": "Conversely, if the court rejects such a plea agreement, it must (1) inform the parties, (2) advise the defendant that the court is not bound by the plea agreement and give the defendant an opportunity to withdraw the guilty plea, and (3) advise the defendant that if the plea is not withdrawn, “the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.” Fed.R.Crim.P. 11(c)(5). B. Categorical rejection of Rule 11(c)(1)(C) stipulations is improper In both its oral decision and minute order, the district court rejected only “the Rule 11(c)(1)(C) stipulated term in the agreement,” rather than rejecting the plea agreement en toto. However, as relevant to this petition, Rule 11 does not distinguish between “sentence bargains,” such as the one at issue in this case, and so-called “charge bargains,” in which a criminal defendant typically pleads guilty to a specific charge in exchange for the prosecution agreeing to drop other charges. Instead, Rule 11 refers to the singular “plea agreement,” language this court has consistently read to mean that rejection of a stipulated sentence constitutes rejection of the entire plea agreement, thereby triggering the mechanisms in current Rule 11(c)(5). See, e.g., United States v. Reyes, 313 F.3d 1152, 1157 (9th Cir.2002) (holding, where district court stated that it accepted a plea agreement “ ‘as in every detail and part’ ” but imposed a longer sentence than contemplated by the plea agreement, that “the district court did not ‘accept’ the plea agreement,” but rather “rejected the plea and substituted its own view of the appropriate sentence under the guidelines”); United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994) (“The rules contain no provision for the district court to modify a [former] Rule 11(e)(1)(C) plea agreement....”); United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (per curiam) (holding that the district court “could not both accept the plea agreement made pursuant to [former] Rule 11(e)(1)(C), which calls for a specific sentence, and reject the sentencing provision of that agreement”). Rule 11 clearly vests district courts with the discretion to accept or reject plea" }, { "docid": "3046129", "title": "", "text": "version of the rule. The Senate accepted the House’s version of the rule. By deleting the Supreme Court’s “more favorable to the defendant” language, Congress evidenced its intent to require a district court to sentence a defendant in accordance with the plea agreement. Id. at 1422-23 (quoting Semler, 883 F.2d at 833-34) (citations omitted). We find the reasoning of Cunavelis persuasive. Moreover, accepting Mukai’s argument would require the district court to ignore a portion of the agreement while respecting the balance. The court does not have such authority. See Fernandez, 960 F.2d at 773 (court erred in rejecting one paragraph of plea agreement rather than either accepting or rejecting entire agreement). If the court did not find the terms of paragraph 7 appropriate, its only option was to reject the agreement in its entirety. Accordingly, we remand the case to the district court with instructions either to accept the plea agreement and abide by its terms or reject the agreement and afford the government and Mukai the opportunity to renegotiate an agreement. REVERSED AND REMANDED. . The version of Rule 35(b) currently in effect provides only for motion by the government. The Semler court interpreted an earlier version of Rule 35(b) which countenanced a motion to reduce the sentence filed by the defendant. The court described an \"exceptional case” as one \"where the sentence is plainly unjust or unfair in light of the information the district court received after sentencing the defendant.” Semler, 883 F.2d at 835 (emphasis added)." }, { "docid": "3046127", "title": "", "text": "to a § 5K1.1 motion and the binding effect of sentencing limitations imposed by an accepted plea agreement under Rule 11(e)(1)(C). In United States v. Cunavelis, 969 F.2d 1419 (2d Cir.1992), the government and defendant entered into a plea agreement providing that the government would make a motion for downward departure pursuant to § 5K1.1. Cunavelis, 969 F.2d at 1421. The agreement limited the downward adjustment, however, by providing “that the final guideline offense level as found by the Court be reduced by four levels and that the defendant be sentenced within the corresponding guideline range.” Id. At sentencing, defendant argued that the district court nevertheless had discretion to depart further because it was not a party to the agreement. Id. The district court rejected this argument, holding that Rule 11(e)(1)(C) required it to implement the parties’ agreement. Id. Accordingly, the district court limited the departure to four levels. The Second Circuit agreed with the district court. Relying in large part on this circuit’s decisions in Semler and Fernandez, the Second Circuit concluded that the dictates of Rule 11, which do not authorize the district court to modify a plea agreement, trump the discretion afforded a district court under § 5K1.1. In reaching this conclusion, the court cited the guidelines, which state that “[t]he rules set forth in Fed.R.Crim.P. 11(e) govern the acceptance or rejection of [plea] agreements.” Cunavelis, 969 F.2d at 1422 (citing U.S.S.G. Ch. 1, Pt. A., intro, comment 4(c) (Nov. 1991)). Further support was found in the history of Rule ll’s adoption: The version of 11(e)(3) proposed by the Supreme Court in 1974 stated that “the court shall inform the defendant that it will embody in the ... sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.” The House Judiciary Committee then deleted the language “or another disposition more favorable to the defendant than that provided for in the plea agreement,” and the House affirmed the committee’s action by rejecting on the floor an amendment offered to restore the Supreme Court’s" }, { "docid": "16293751", "title": "", "text": "curiam); see also United States v. Bohn, 959 F.2d 389, 391 (2d Cir.1992) (“[i]f [district judge] accepts the bargain ... he must conform the sentence to that bargain”); Fed.R.Crim.P. 11 advisory committee’s note (1991) (“critical to a type (A) or (C) agreement is that the defendant receive the contemplated charge dismissal or agreed-to sentence”). Our reading of the Rule is supported by the history of its adoption: The legislative history of 11(e)(3) shows that Congress wished to preclude a district court from accepting a plea agreement which provides for a specific sentence and then imposing a more lenient sentence than that provided for in the plea agreement. The version of 11(e)(3) proposed by the Supreme Court in 1974 stated that “the court shall inform the defendant that it will embody in the ... sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.” The House Judiciary Committee then deleted the language “or another disposition more favorable to the defendant than that provided for in the plea agreement,” and the House affirmed the committee’s action by rejecting on the floor an amendment offered to restore the Supreme Court’s version of the rule. The Senate accepted the House’s version of the rule. See 121 Cong.Rec. 23322 (July 17, 1975) (discussion of legislative history of the rule). By deleting the Supreme Court’s “more favorable to the defendant” language, Congress evidenced its intent to require a district court to sentence a defendant in accordance with the plea agreement. United States v. Semler, 883 F.2d 832, 833-34 (9th Cir.1989). Thus, Chief Judge Parker correctly determined that, having accepted the plea agreement between Cu-navelis and the Government, he was bound by its terms. Obstruction of Justice Enhancement The Sentencing Guidelines provide that “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution or sentencing of the instant offense, [the district court shall] increase the offense level by 2 levels.” U.S.S.G. § 3C1.1 (Nov. 1991). The Guidelines caution that, “[i]n applying" }, { "docid": "4198814", "title": "", "text": "a presentenee report will not be prepared), or it may defer decision until it has the benefit of the information provided by a presentenee report; “There is, of course, no absolute right to have a guilty plea accepted.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Once the court has accepted a plea agreement, however, it is, as a general rule, bound by the terms of that agreement. United States v. Skidmore, 998 F.2d 372, 374-76 (6th Cir.1993); United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir.1993); United States v. Yesil, 991 F.2d 1527, 1531-32 (11th Cir.1992); United States v. Cunavelis, 969 F.2d 1419, 1422-23 (2d Cir.1992); United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (per curiam); United States v. Olesen, 920 F.2d 538, 540-43 (8th Cir.1990); United States v. Partida-Parra, 859 F.2d 629, 631-33 (9th Cir.1988); United States v. Holman, 728 F.2d 809, 813 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984); United States v. Cruz, 709 F.2d 111, 114-15 (1st Cir.1983); United States v. Blackwell, 694 F.2d 1325, 1338-39 & n. 19 (D.C.Cir.1982). There is no provision in the rules allowing a court to reject or modify an agreement once accepted. Skidmore, 998 F.2d at 375; Olesen, 920 F.2d at 540; Partida-Parra, 859 F.2d at 632-33; Cruz, 709 F.2d at 114-15. On the contrary, the principle that a plea agreement once accepted is binding is signaled by Rule 11 itself. For example, the rule explains: If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement. Rule 11(e)(3). “Thus, the rule plainly contemplates that plea agreements executed pursuant to subdivision (e)(1)(A) or (C) — in contrast to the precatory nature of agreements made under subdivision (e)(1)(B) — are binding on the district court.” Cunavelis, 969 F.2d at 1422. The fact that the rule also permits (and the Guidelines now require) the court to defer acceptance or rejection of the plea agreement until" }, { "docid": "3046128", "title": "", "text": "dictates of Rule 11, which do not authorize the district court to modify a plea agreement, trump the discretion afforded a district court under § 5K1.1. In reaching this conclusion, the court cited the guidelines, which state that “[t]he rules set forth in Fed.R.Crim.P. 11(e) govern the acceptance or rejection of [plea] agreements.” Cunavelis, 969 F.2d at 1422 (citing U.S.S.G. Ch. 1, Pt. A., intro, comment 4(c) (Nov. 1991)). Further support was found in the history of Rule ll’s adoption: The version of 11(e)(3) proposed by the Supreme Court in 1974 stated that “the court shall inform the defendant that it will embody in the ... sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.” The House Judiciary Committee then deleted the language “or another disposition more favorable to the defendant than that provided for in the plea agreement,” and the House affirmed the committee’s action by rejecting on the floor an amendment offered to restore the Supreme Court’s version of the rule. The Senate accepted the House’s version of the rule. By deleting the Supreme Court’s “more favorable to the defendant” language, Congress evidenced its intent to require a district court to sentence a defendant in accordance with the plea agreement. Id. at 1422-23 (quoting Semler, 883 F.2d at 833-34) (citations omitted). We find the reasoning of Cunavelis persuasive. Moreover, accepting Mukai’s argument would require the district court to ignore a portion of the agreement while respecting the balance. The court does not have such authority. See Fernandez, 960 F.2d at 773 (court erred in rejecting one paragraph of plea agreement rather than either accepting or rejecting entire agreement). If the court did not find the terms of paragraph 7 appropriate, its only option was to reject the agreement in its entirety. Accordingly, we remand the case to the district court with instructions either to accept the plea agreement and abide by its terms or reject the agreement and afford the government and Mukai the opportunity to renegotiate an agreement. REVERSED AND REMANDED." }, { "docid": "16121369", "title": "", "text": "required the forfeiture of Fernandez’s ill-gotten gains. At sentencing, the government took the position that Fernandez had failed to live up to his obligation to cooperate under the plea agreement and that this failure rendered Paragraph Five, but not the entire plea agreement, null and void. Based on this interpretation, the government recommended a sentence in excess of the six year maximum provided for in Paragraph Five of the plea agreement. The district court accepted this reasoning, finding: We have a plea agreement. In other words, all that is being declared null and void is — see, this plea agreement is made up of different agreements, like paragraph one is an agreement on the part of the defendant to enter a plea of guilty; paragraph two is an agreement on the part of the defendant to cooperate; paragraph three is an agreement on the part of the defendant relative to forfeiture. ... The court accepted the entire plea agreement, but what the court is doing now, because of the violation of paragraphs two and three, lack of cooperation, that this particular plea agreement under five is declared null and void. After this declaration, Fernandez attempted to withdraw his plea pursuant to U.S.S.G. § 6BI.3. The district court denied the motion, emphasizing again that “the court accepted the plea agreement in its entirety.” Fernandez was then sentenced to 78 months imprisonment. The district court clearly erred in its interpretation of the plea agreement. The plea agreement was specifically designated as one made “pursuant to Rule 11(e)(1)(C).” When a plea agreement is made pursuant to Fed.R.Crim.P. 11(e)(1)(C), the trial court may accept or reject the agreement, but, absent exceptional circumstances, it may not accept the defendant’s guilty plea and impose a sentence greater, United States v. Herrera, 640 F.2d 958, 960 n. 2 (9th Cir.1981) (dictum); United States v. Burruezo, 704 F.2d 33, 38 (2d Cir.1983), or less severe, Semler, 883 F.2d at 833, than that agreed upon. The Guidelines provide that, “[i]f a plea agreement pursuant to ... Rule 11(e)(1)(C) is rejected, the court shall afford the defendant an opportunity to" }, { "docid": "3046123", "title": "", "text": "district court departed downward and sentenced Mukai to five years of probation, a sentence substantially less than the minimum sentence of five years of imprisonment set forth in the plea agreement. Relying on paragraph 7 of the plea agreement, the government moved to withdraw from the agreement, but the district court denied the government’s request. The government appeals the district court’s sentencing decision and its refusal to allow the government to withdraw from the agreement. II Rule 11(e) of the Federal Rules of Criminal Procedure describes three categories of plea agreements: an agreement that moves “for dismissal of other charges,” Fed. R.Crim.P. 11(e)(1)(A); an agreement that makes a recommendation or contains an agreement “not to oppose the defendant’s request! ] for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court,” id. 11(e)(1)(B); and an agreement that “a specific sentence is the appropriate disposition of the case,” id. 11(e)(1)(C). The court may “accept or reject” a plea agreement of “the type specified in subdivision (e)(1)(A) or (C).” Id. 11(e)(2). If the district court accepts the plea agreement, then the court’s judgment and sentence shall embody the disposition provided for in the plea agreement. Id. 11(e)(3). The rules contain no provision for the district court to modify a Rule 11(e)(1)(C) plea agreement, such as Mukai’s agreement, and this court has stated that “Rule 11(e)(3) prohibits a district court from sentencing a defendant to a sentence less severe than that provided for in the plea agreement accepted by the court.” United States v. Semler, 883 F.2d 832, 833 (9th Cir.1989). Despite the general prohibition against modifying Rule 11(e)(1)(A) or (C) plea agreements, the district court, relying on our decision in United States v. Fernandez, 960 F.2d 771 (9th Cir.1992) (per curiam), nonetheless concluded that in this circuit the general rule will give way in a ease presenting “exceptional circumstances.” In Fernandez, we stated that: When a plea agreement is made pursuant to Fed.R.Crim.P. 11(e)(1)(C), the trial court may accept or reject the agreement, but, absent exceptional circumstances, it may not accept the defendant’s guilty" }, { "docid": "16293749", "title": "", "text": "appropriate extent of departure.” See, e.g., United States v. Ah-Kai, 951 F.2d 490 (2d Cir.1991); United States v. Pippin, 903 F.2d 1478 (11th Cir.1990). We agree with this non-controversial statement and the cases from which it is distilled — as far as they go. However, they are simply inapplicable to plea agreements governed by Fed. R.Crim.P. 11(e)(1)(C). The Guidelines emphatically state that “[t]he rules set forth in Fed.R.Crim.P. 11(e) govern the acceptance or rejection of [plea] agreements.” U.S.S.G. Ch. 1, Pt. A., intro, comment 4(c) (Nov. 1991). Accordingly, Rule 11 — not Guidelines section 5K1.1— controls. Rule 11 provides in relevant part: (e) Plea Agreement Procedure. (1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following: (A) move for dismissal of other charges; or (B) make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or (C) agree that a specific sentence is the appropriate disposition of the case. Fed.R.Crim.P. 11(e) (1991). The Rule further explains that “[i]f the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement, .... If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.” Id. Thus, the rule plainly contemplates that plea agreements executed pursuant to subdivision (e)(1)(A) or (C) — in contrast to the precatory nature of agreements made under subdivision (e)(1)(B)— are binding on the district court. The district court may accept or reject an (A) or (C) plea, but it may not modify it. See United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (per" }, { "docid": "3046126", "title": "", "text": "to acceptance and, as the court explained in Sender, if the court later finds the disposition in the plea agreement objectionable it “should not reduce the sentence unilaterally in such eases, but rather should withdraw its acceptance of the plea agreement and permit the parties to renegotiate a more appropriate sentence or opt for trial.” Semler, 883 F.2d at 835. The district court erred in concluding “exceptional circumstances” might justify disregarding the terms of the plea agreement that it had accepted. Mukai offers an alternative basis for affirming her sentence. Relying on the general proposition that “[i]n section 5K1.1 departures ... the government has no control over the extent of the departure,” United States v. Udo, 963 F.2d 1318, 1319 (9th Cir.1992), Mukai argues that the government’s § 5K1.1 motion gave the district court the authority to depart downward as much as it deemed appropriate without regard for the terms of the agreement. The Second Circuit has considered the conflict between the sentencing court’s usual discretion to determine the appropriate extent of departure in response to a § 5K1.1 motion and the binding effect of sentencing limitations imposed by an accepted plea agreement under Rule 11(e)(1)(C). In United States v. Cunavelis, 969 F.2d 1419 (2d Cir.1992), the government and defendant entered into a plea agreement providing that the government would make a motion for downward departure pursuant to § 5K1.1. Cunavelis, 969 F.2d at 1421. The agreement limited the downward adjustment, however, by providing “that the final guideline offense level as found by the Court be reduced by four levels and that the defendant be sentenced within the corresponding guideline range.” Id. At sentencing, defendant argued that the district court nevertheless had discretion to depart further because it was not a party to the agreement. Id. The district court rejected this argument, holding that Rule 11(e)(1)(C) required it to implement the parties’ agreement. Id. Accordingly, the district court limited the departure to four levels. The Second Circuit agreed with the district court. Relying in large part on this circuit’s decisions in Semler and Fernandez, the Second Circuit concluded that the" }, { "docid": "16121370", "title": "", "text": "lack of cooperation, that this particular plea agreement under five is declared null and void. After this declaration, Fernandez attempted to withdraw his plea pursuant to U.S.S.G. § 6BI.3. The district court denied the motion, emphasizing again that “the court accepted the plea agreement in its entirety.” Fernandez was then sentenced to 78 months imprisonment. The district court clearly erred in its interpretation of the plea agreement. The plea agreement was specifically designated as one made “pursuant to Rule 11(e)(1)(C).” When a plea agreement is made pursuant to Fed.R.Crim.P. 11(e)(1)(C), the trial court may accept or reject the agreement, but, absent exceptional circumstances, it may not accept the defendant’s guilty plea and impose a sentence greater, United States v. Herrera, 640 F.2d 958, 960 n. 2 (9th Cir.1981) (dictum); United States v. Burruezo, 704 F.2d 33, 38 (2d Cir.1983), or less severe, Semler, 883 F.2d at 833, than that agreed upon. The Guidelines provide that, “[i]f a plea agreement pursuant to ... Rule 11(e)(1)(C) is rejected, the court shall afford the defendant an opportunity to withdraw the defendant’s guilty plea.” U.S.S.G. § 6B1.3; see also Fed.R.Crim.P. 11(e)(4). Here, the district court purported to accept the plea agreement as a whole but rejected the provision establishing the specific sentence which was considered by the parties as the appropriate disposition of the case. At the time Fernandez entered his guilty plea, however, the district court made sure Fernandez understood that, “[t]he plea agreement entered by you and the Unite[d] States is made pursuant to the provision of Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure, which provides for an appropriate sentence.” Logically, the district court could not both accept the plea agreement made pursuant to Rule 11(e)(1)(C), which calls for a specific sentence, and reject the sentencing provision of that agreement. In this case, Fernandez could only have reasonably understood Paragraph Five of the plea agreement to mean that if he failed to live up to his end of the bargain, the entire plea agreement would be null and void. Cf Kamer, 781 F.2d at 1388 (Reasonable understanding of parties to" } ]

[ { "docid": "3637636", "title": "", "text": "VAN OOSTERHOUT, Circuit Judge. Appellant, Sale, appeals from an order of the District Court overruling his motions to dissolve and discharge attachment and to quash subpoena duces tecum, said order further directing Sale to ap pear before John F. Clarke, Special Agent, Internal Revenue Service, and to produce and deliver certain work papers in Sale’s possession, prepared by an accountant for John Gazzoli and Albert Librach, hereinafter referred to as taxpayers, who were clients of Sale, an attorney at law. Jurisdiction of this court is invoked under 28 U.S.C. § 1291. It would seem that the order appealed from is a final order and that an appeal lies. Brownson v. United States, 8 Cir., 32 F.2d 844, 846; Falsone v. United States, 5 Cir., 205 F.2d 734, 737; In re Albert Lindley Lee Memorial Hospital, 2 Cir., 209 F.2d 122, certiorari denied Cincotta v. United States, 347 U.S. 960, 74 S.Ct. 709, 98 L.Ed. 1104. Special Agent Clarke was investigating the 1946-1949 tax liability of taxpayers for whom Sale acted as an attorney at all times material to this controversy. Rosenbaum had acted as part-time bookkeeper and accountant for the taxpayers, and in performing such duties had made out certain work papers which Rosenbaum retained with other papers in his office until 1953 when, at the request of taxpayers, such work papers were delivered to Sale who has since retained possession of such papers. On May 4, 1953, Clarke, as Special Agent, executed and served upon Sale a summons to appear to testify and to produce the work papers and schedules prepared by Rosenbaum covering the years 1946-1949, said action being taken pursuant to section 3614 of the Internal Revenue Code of 1939. Sale immediately upon receiving the summons advised Clarke by letter that the work papers requested were the property of his clients and were privileged communications in his hands as attorney, and that he could not comply with the summons unless directed by the court to do so. Slightly more than a year later, on May 19, 1954, the United States District Attorney at the request of the" } ]

[ { "docid": "5873848", "title": "", "text": "of such an investigation is beyond the authority contained in Section 7604. In making this contention, appellant relies heavily upon language of the Supreme Court in Reisman v. Caplin, supra. The particular language relied upon is as follows: “Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 9 Cir., 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 8 Cir., 228 F.2d 682. In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In re: Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank of Corbin, Ky. v. United States, supra [6 Cir., 244 F.2d 177] * * *.” Appellant contends that since the function of the special agents is to investigate to see whether a crime has been committed, no subpoena can be issued under the authority of Section 7602 because of the language of the Reisman opinion “this would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution,” citing Boren v. Tucker, supra. This argument goes too far. In the first place, it will be noted that under the express language of the Act, the subpoena may be served upon the taxpayer himself or upon any other person having records relevant to the inquiry. It is also apparent that there is no express limitation on the face of the statute that the power to make the investigation to — ascertain “the correctness of any return, making a return where none has been made, determining the liability for any person for any internal revenue tax” limits the inquiry to" }, { "docid": "2935434", "title": "", "text": "summons should be sought. The person summoned could be penalized for failure to comply only if the summons had been enforced by a court under the terms of § 7402(b). \"Any enforcement action under this section would be an adversary proceeding affording a judicial determination of the challenges to the summons and giving complete protection to the witness,\" 375 U.S. at 446, 84 S.Ct. at 512, 11 L.Ed.2d at 464 and appropriate grounds on which the summons could be challenged in the judicial proceeding would include \"that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, * * * as well as that it is protected by the attorney-client privilege.\" Id. at 449, 84 S.Ct. at 513, 11 L.Ed.2d at 486. Powell dealt with the standards the Internal Revenue Service must meet to `obtain judicial enforcement of its summons. The Court held that the statutes did not authorize the courts to hold the IRS to a showing of the nature of probable cause, but that the Commissioner \"must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed.\" 379 U.S. 57-58, 85 S.Ct. at 255, 13 L,Ed.2d at 119. However, \"the burden of showing an abuse of the court's process is on the taxpayer.\" Id. at 58, 85 S.Ct. at 255, 13 L. Ed.2d at 120. It would be a misuse of the tax summons for the IRS to endeavor to use it to obtain evidence for use in an existing criminal prosecution. Reisman v. Caplin, 375 U.S. at 449, 84 S.Ct. at 513, 11 L.Ed.2d at 466; Boren v. Tucker, 9 Cir. 1956, 239 F.2d 767, 772-73; United States v. O'Connor, D.Mass.1953, 118 F.Supp. 248. This rule has been applied even when the person summoned and the person prosecuted are not the same. Application of Myers, E.D.Pa. 1962, 202 F.Supp. 212. However, the mere fact that the" }, { "docid": "23455347", "title": "", "text": "than affidavits already on file. Concluding that the “allegation of harassment is not supported by the record,” the judge entered orders (1) quashing the notice of taking of depositions and (2) enforcing the summons against the Church. At the request of the Church, the judge stayed enforcement of the summons pending appeal, on the condition that the Church deposit with the court all of the books and records sought by the summons. The Church did so, filling 23 trunks with records, and brought this appeal. We have jurisdiction under 28 U.S.C. § 1291. Reisman v. Caplin, 1964, 375 U.S. 440, 449, 84 S.Ct. 508, 11 L.Ed.2d 459; D. I. Operating Co. v. United States, 9 Cir., 1963, 321 F.2d 586. II. Summons Enforcement Proceedings in General. We begin with a review of a few basic, settled principles. An internal revenue summons is “administratively issued but its enforcement is only by federal court authority in .‘an adversary proceeding’ affording the opportunity for challenge and ‘complete protection to the witness.’ ” Donaldson v. United States, 1971, 400 U.S. 517, 525, 91 S.Ct. 534, 539, 27 L.Ed.2d 580; Reisman v. Caplin, 1964, 375 U.S. 440, 446, 84 S.Ct. 508, 11 L.Ed.2d 459. The Federal Rules of Civil Procedure apply to a summons proceeding. Fed.R.Civ.P. 81(a)(3); United States v. Powell, 1964, 379 U.S. 48, 58, n. 18, 85 S.Ct. 248, 13 L.Ed.2d 112; Martin v. Chandis Securities Co., 9 Cir., 1942, 128 F.2d 731, 734. But the Civil Rules are not inflexible; a district court may limit their application in a proceeding to enforce a summons which is intended to be a summary proceeding, so long as the rights of the party summoned are protected and an adversary hearing, if requested, is made available. Donaldson, supra, 400 U.S. at 528-29, 91 S.Ct. 534. The Internal Revenue Service need not meet any standard of probable cause to obtain enforcement of its summons; it must show only (1) that the investigation will be conducted pursuant to a legitimate purpose; (2) that the inquiry may be relevant to the purpose; (3) that the information sought is not" }, { "docid": "978579", "title": "", "text": "entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and (3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry. This statute on its face and by interpretation provides for administrative summonses to aid the Internal Revenue Service in its civil tax collection work. It has been interpreted by the United States Supreme Court in two cases generally favorable to the government. Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), and Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). The fundamental holdings of Donaldson appear to be the following: The argument centers in the above-mentioned dictum in Riesman, 375 U.S., at 449 [84 S.Ct. [508] at 513]: “[T]he witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 239 F.2d 767, 772-773 (9th Cir. 1956), as well as that it is protected by the attorney-client privilege . . . .” We note initially that, despite the dictum, the courts of appeals in opinions issued since Reisman was decided, appear uniformly to approve the use of a summons in an investigation that is likely to lead to civil liability as well as to criminal prosecution. The use of a summons also has been approved, even where it is alleged that its purpose is to uncover crime, if no criminal prosecution as yet has been instituted. On the other hand, it has been said, usually citing Reisman, that where the sole objective of the investigation is to" }, { "docid": "5873847", "title": "", "text": "the intervenor in asserting that they have been conducting an investigation to ascertain the correct income tax liability of Kevin L. Donaldson, for the calendar years 1964, 1965, 1966 and 1967. “John P. Grady is a special agent assigned to the intelligence division, Internal Revenue Service, Tampa Florida, and Bruce B. Miller is a special agent assigned to the Intelligence Division, Internal Revenue Service, New Orleans, Louisiana. “The function of the Intelligence Division is to enforce the criminal statutes applicable to tax laws by developing information concerning alleged criminal violations thereof. “Special Agent Bruce B. Miller was assigned the investigation of Kevin L. Donaldson for the calendar years 1964, 1965, 1966 and 1967 for the express and sole purpose of obtaining evidence concerning any violations of the criminal statutes applicable to the tax laws of the United States and special agent John P. Grady is assisting special agent Miller in this investigation.” These, then, are the allegations of the complaint upon which the appellant bases his contention that the issuance of a subpoena in support of such an investigation is beyond the authority contained in Section 7604. In making this contention, appellant relies heavily upon language of the Supreme Court in Reisman v. Caplin, supra. The particular language relied upon is as follows: “Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 9 Cir., 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 8 Cir., 228 F.2d 682. In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In re: Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank of Corbin, Ky. v. United States, supra [6" }, { "docid": "7356354", "title": "", "text": "517, 535, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). Current dubieties have their origin in a dictum in Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 513,11 L.Ed.2d 459 (1964), where, in upholding the denial of injunctive and declaratory relief to a taxpayer’s attorneys in a suit against the Commissioner of Internal Revenue and an accounting firm with respect to reports produced by the latter at the attorneys’ request for use in civil and criminal litigation against the taxpayer, the Court said: Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 9 Cir., 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 8 Cir., 228 F.2d 682. If Boren v. Tucker constituted the limit of what the Court had in mind, the restriction placed on I.R.C. § 7602 would not be very great. There the court of appeals, after having propounded the question whether use of the word “correctness” in § 7602 would “prevent examination [of a taxpayer’s records] for purpose[s] of securing evidence for a criminal prosecution?”, answered in the negative. Referring to what the court characterized as the taxpayer’s “only authority on this aspect of his position,” United States v. O’Connor, 118 F.Supp. 248, 250 (D.Mass.1953), the opinion correctly characterized Judge Wyzanski’s opinion in that case as holding only that the predecessor to § 7602 “did not authorize an agent to issue a subpoena, merely to aid the prosecution of a pending criminal action by the Department of Justice.” Boren v. Tucker, supra, 239 F.2d at 772 (emphasis in original). The argument for a restrictive reading of § 7602 was not advanced by United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964). Although Mr. Justice Harlan declared that a" }, { "docid": "10021695", "title": "", "text": "I. Operating Co. v. United States, 321 F.2d 586 (C.A. 9th Cir.). Contra, Application of Davis, 303 F.2d 601 (C.A. 7th Cir.). It follows that with a stay order a witness would suffer no injury while testing the summons. Reisman v. Caplin, supra at 449, 84 S.Ct. at 513. Although the Reisman case is not concerned with the FTC Act, it is impossible for us to distinguish its requirement of exhaustion of statutory remedies in relation to the IRS subpoenas from the same requirement in relation to the FTC subpoenas involved in this case. In an opinion by Judge (now Justice) Blackmun for the Eighth Circuit, the court held: We therefore view these corresponding provisions of the Federal Trade Commission Act and of the Internal Revenue Code of 1954 as in pari materia. See Handler, Recent Antitrust Developments —1964, 63 Mich.L.Rev. 59, 90-92 (1964). Anheuser-Busch, Inc. v. FTC, supra at 490. III. OTHER ISSUES 1. The Declaratory Judgment Issue Plaintiffs’ complaint, in addition to seeking injunctive relief against the proposed FTC investigation, also sought a declaratory judgment holding that the FTC Resolution authorizing an investigation violated plaintiffs’ Fourth and Fifth Amendment rights and was invalid. The District Judge never reached this issue. No declaratory judgment was issued and, of course, no appeal was taken. Appellees’ brief, however, appears to argue for our adjudication of the asserted invalidity of the Resolution on its face. Since, as indicated above, we believe that the District Judge should have dismissed this complaint because of failure to exhaust statutorily provided administra tive remedies, we should point out that any deficiencies in the Resolution are also subject to correction in the administrative process. Plaintiffs allege, for example, that contrary to an FTC Operating Manual rule, the Resolution does not identify the statute’s provisions with which the investigation is concerned. Section 3.7(B) of the FTC Operating Manual provides: (2) The body of the resolution must adequately set forth the “Nature and Scope of Investigation.” A mere citation of the statute (e. g., Section 5, Federal Trade Commission Act) does not constitute an adequate statement of the nature" }, { "docid": "23335069", "title": "", "text": "of the above payments which may have been received by you or your office in the form of checks or money orders. Cash disbursement journals, ledger cards, and/or other such records in your possession, detailing dates, check numbers and amounts of money paid out by you or your office in connection with the Wood divorce and settlement actions. Cancelled checks in your possession, utilized in the payment of the above disbursements by you or your office. Mr. Harrington’s documents bear upon the correctness of the tax liabilities, or lack thereof, of Merle W. Wood and/or The Country Store, Inc. . I.R.C.1954, § 7604, 26 Ü.S.C. § 7604: (a) Jurisdiction of District Court.— If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data. . This holding on appealability, while not necessary to disposition of Reisman, does settle a conflict among the various courts of appeals. This court has consistently held orders directing compliance with an investigative summons appealable. United States v. Kulukundis, 329 F.2d 197 (2d Cir. 1964); In re Albert Lindley Lee Memorial Hospital, 209 F.2d 122 (2d Cir. 1953). See also O’Connor v. O’Connell, 253 F.2d 365 (1st Cir. 1958); Falsone v. United States, 205 F.2d 734 (5th Cir. 1953); Bouschor v. United States, 316 F.2d 451 (8th Cir. 1963); D. I. Operating Co. v. United States, 321 F.2d 586 (9th Cir. 1963). Contra, In re Davis, 303 F.2d 601 (7th Cir.), cert, granted, Davis v. Soja, 371 U.S. 810, 83 S.Ct. 45, 9 L.Ed.2d 53 (1962), judgment vacated and dismissed for mootness, 374 U.S. 495, 83 S.Ct. 1863, 10 L.Ed.2d 1043 (1963). . The Ninth Circuit did indicate that a clear showing of relevancy would be required in third-party tax investigation, Hubner v. Tucker, 245 F.2d 35 (1957), but that case involved an overbroad and sweeping order that failed" }, { "docid": "6378164", "title": "", "text": "before the district court is not ancillary to any judicial proceeding. So far as the court is concerned, it is complete in itself.” Several circuits faced with the question before us have observed the foregoing distinction and concluded that an order compelling compliance with a summons issued pursuant to 26 U.S.C. § 7602 (or the equivalent provision in the 1939 Code) is a final decision and appealable. Brownson v. United States, 32 F.2d 844 (8th Cir. 1929); Falsone v. United States, 205 F.2d 734 (5th Cir. 1953); In re Albert Lindley Lee Memorial Hospital, 209 F.2d 122 (2nd Cir. 1953); O’Connor v. O’Connell, 253 F.2d 365 (1st Cir. 1958); Bouschor v. United States, 316 F.2d 451 (8th Cir. 1963). Compare Application of Colton, 291 F.2d 487 (2nd Cir. 1961) [proceeding initiated by witness by filing of motion to vacate I.R.S. summons]. In several cases appealability seems to have been assumed sub silentio, notably, First National Bank of Mobile v. United States, 267 U.S. 576, 45 S.Ct. 231, 69 L.Ed. 796 (1925), and Local 174, International Brotherhood of Teamsters v. United States, 240 F.2d 387 (9th Cir. 1956). The seventh circuit has held otherwise. Jarecki v. Whetstone, 192 F.2d 121 (7th Cir. 1951); Application of Davis, supra. The circuit court held in those cases that the proceeding of the lower court which culminated in the order appealed from was one for contempt of the administrative summons. Applying the familiar appealability standard in proceedings for contempt of court orders, the seventh circuit concluded that finality would not attach until sentence for contempt had been imposed. This rationale is grounded upon the nature of the specific statutory provision involved in those cases. 26 U.S.C. § 7604(b). In the Davis case, the court acknowledged the line of cases holding orders such as here involved to be appealable, but submitted that those cases “have failed to recognize the distinction between a contempt proceeding initiated pursuant to § 7604 — which is not terminated by the order directing compliance — and other types of statutory enforcement procedures in which the enforcement order is the end of" }, { "docid": "22649366", "title": "", "text": "See In re Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank v. United States, supra. And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U. S. 61 (1939); Brody v. United States, 243 F. 2d 378. Finally, we hold that such orders are appealable. See O’Connor v. O’Connell, 253 F. 2d 365 (C. A. 1st Cir.) ; In re Albert Lindley Lee Memorial Hospital, supra; Falsone v. United States, supra; Bouschor v. United States, 316 F. 2d 451 (C. A. 8th Cir.); Martin v. Chandis Securities Co., 128 F. 2d 731 (C. A. 9th Cir.); D. I. Operating Co. v. United States, 321 F. 2d 586 (C. A. 9th Cir.). Contra, Application of Davis, 303 F. 2d 601 (C. A. 7th Cir.). It follows that with a stay order a witness would suffer no injury while testing the summons. Nor would there be a difference should the witness indicate — as has Peat, Marwick, Mitchell & Co. — that he would voluntarily turn the papers over to the Commissioner. If this be true, either the taxpayer or any affected party might restrain compliance, as the Commissioner suggests, until compliance is ordered by a court of competent jurisdiction. This relief was not sought here. Had it been, the Commissioner would have had to proceed for compliance, in which event the petitioners or the Brom-leys might have intervened and asserted their claims. Finding that the remedy specified by Congress works no injustice and suffers no constitutional invalidity, we remit the parties to the comprehensive procedure of the Code, which provides full opportunity for judicial review before any coercive sanctions may be imposed. Cf. United States v. Babcock, 250 U. S. 328, 331 (1919). Affirmed. “§ 7602. Examination of books and witnesses. “For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect" }, { "docid": "11996603", "title": "", "text": "parties to this appeal. It has been consistently held that where the objective of an investigation is to obtain information which may be used in determining whether there is civil liability for a tax, the summons directed to a bank may be enforced even though the information may also be used in a criminal prosecution. Wild v. United States, 362 F.2d 206 (C.A. 9, June 2, 1966). However, this issue is not before this Court. The sole question before us on appeal is whether the Court erred in denying the Taxpayers’ motion to intervene. On the right of a taxpayer to intervene in this type of proceeding, the Supreme Court said in Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964); “Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 239 F.2d 767, 772-773 (C.A.9, 1956), as well as that it is protected by the attorney-client privilege, Sale v. United States, 228 F.2d 682 (C.A.8, 1956). In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In Re Albert Lindley Lee Memorial Hospital, 2 Cir., 209 F.2d 122 (C.A.2, 1953), and Corbin Deposit Bank of Corbin, Ky. v. United States, 6 Cir., 244 F.2d 177 (C.A.6, 1957). And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108 (1939); Brody v. United States, 243 F.2d 378 (C.A.l, 1957). Finally, we hold that such orders are appealable.” (Emphasis added.) Upon consideration of the motion of the Taxpayers to intervene, the Court finds that these proceedings under Section 7604(b) are properly before the Court. The questions raised as" }, { "docid": "7356353", "title": "", "text": "His affidavit concluded with a paragraph which we quote in the margin. The taxpayers submitted no further affidavits. After hearing argument Judge Carter granted the Government’s petition and taxpayers appealed. Meanwhile enforcement has been stayed. DISCUSSION The question how far a summons issued under I.R.C. § 7602 is open to attack because of its relation to a criminal prosecution has been much litigated in recent years. Since we hopefully will receive further enlightenment on the subject as a result of the grant of certiorari, 434 U.S. 996, 98 S.Ct. 632, 54 L.Ed.2d 489 (1977), to review United States v. LaSalle National Bank, 554 F.2d 302 (7 Cir. 1977), a summary of the doctrinal history will suffice. There is nothing on the face of the statute, see note 1 supra, which prevents its utilization in aid of an investigation with a potential for criminal rather than merely civil prosecution of a taxpayer. Indeed, in its latest decision on the subject, the Supreme Court seems to us to have so declared, Donaldson v. United States, 400 U.S. 517, 535, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). Current dubieties have their origin in a dictum in Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 513,11 L.Ed.2d 459 (1964), where, in upholding the denial of injunctive and declaratory relief to a taxpayer’s attorneys in a suit against the Commissioner of Internal Revenue and an accounting firm with respect to reports produced by the latter at the attorneys’ request for use in civil and criminal litigation against the taxpayer, the Court said: Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 9 Cir., 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 8 Cir., 228 F.2d 682. If Boren v. Tucker constituted the" }, { "docid": "10021694", "title": "", "text": "for use in a criminal prosecution, Boren v. Tucker, [9 Cir.,] 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, [8 Cir.,] 228 F.2d 682. In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In re Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank v. United States, supra. And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U.S. 61 [59 S.Ct. 685, 83 L.Ed. 1108] (1939); Brody v. United States, [1 Cir.,] 243 F.2d 378. Finally, we hold that such orders are ap-pealable. See O'Connor v. O’Connell, 253 F.2d 365 (C.A. 1st Cir.); In re Albert Lindley Lee Memorial Hospital, supra; Falsone v. United States, supra; Bous-chor v. United States, 316 F.2d 451 (C.A. 8th Cir.); Martin v. Chandis Securities Co., 128 F.2d 731 (C.A. 9th Cir.); D. I. Operating Co. v. United States, 321 F.2d 586 (C.A. 9th Cir.). Contra, Application of Davis, 303 F.2d 601 (C.A. 7th Cir.). It follows that with a stay order a witness would suffer no injury while testing the summons. Reisman v. Caplin, supra at 449, 84 S.Ct. at 513. Although the Reisman case is not concerned with the FTC Act, it is impossible for us to distinguish its requirement of exhaustion of statutory remedies in relation to the IRS subpoenas from the same requirement in relation to the FTC subpoenas involved in this case. In an opinion by Judge (now Justice) Blackmun for the Eighth Circuit, the court held: We therefore view these corresponding provisions of the Federal Trade Commission Act and of the Internal Revenue Code of 1954 as in pari materia. See Handler, Recent Antitrust Developments —1964, 63 Mich.L.Rev. 59, 90-92 (1964). Anheuser-Busch, Inc. v. FTC, supra at 490. III. OTHER ISSUES 1. The Declaratory Judgment Issue Plaintiffs’ complaint, in addition to seeking injunctive relief against the proposed FTC investigation, also sought a" }, { "docid": "22649360", "title": "", "text": "produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry . . . .” The petitioners make no claim that this provision suffers any constitutional infirmity on its face. This Court has never passed upon the rights of a party summoned to appear before a hearing officer under § 7602. However, the Government concedes that a witness or any interested party may attack the summons before the hearing officer. There are cases among the circuits which hold that both parties summoned and those affected .by a disclosure may appear or intervene before the District Court and challenge the summons by asserting their constitutional or other claims. In re Albert Lindley Lee Memorial Hospital, 209 F. 2d 122 (C. A. 2d Cir.); Falsone v. United States, 205 F. 2d 734 (C. A. 5th Cir.); and Corbin Deposit Bank v. United States, 244 F. 2d 177 (C. A. 6th Cir.). We agree with that view and see no reason why the same rule would not apply before the hearing officer. Should the challenge to the summons be rejected by the hearing examiner and the witness still refuse to testify or produce, the examiner is given no power to enforce compliance or to impose sanctions for noncompliance. If the Secretary or his delegate wishes to enforce the summons, he must proceed under § 7402 (b), which grants the District Courts of the United States jurisdiction “by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.” Any enforcement action under this section would be an adversary proceeding affording a judicial determination of the challenges to the summons and giving complete protection to the witness. In such a proceeding only a refusal to comply with an order of the district judge subjects the witness to contempt proceedings. III. It is urged that the penalties of contempt risked by a refusal to comply with the summonses are so severe that the statutory procedure amounts to a denial of judicial review. The leading cases on this question" }, { "docid": "11996604", "title": "", "text": "for use in a criminal prosecution, Boren v. Tucker, 239 F.2d 767, 772-773 (C.A.9, 1956), as well as that it is protected by the attorney-client privilege, Sale v. United States, 228 F.2d 682 (C.A.8, 1956). In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In Re Albert Lindley Lee Memorial Hospital, 2 Cir., 209 F.2d 122 (C.A.2, 1953), and Corbin Deposit Bank of Corbin, Ky. v. United States, 6 Cir., 244 F.2d 177 (C.A.6, 1957). And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108 (1939); Brody v. United States, 243 F.2d 378 (C.A.l, 1957). Finally, we hold that such orders are appealable.” (Emphasis added.) Upon consideration of the motion of the Taxpayers to intervene, the Court finds that these proceedings under Section 7604(b) are properly before the Court. The questions raised as to the Taxpayers’ constitutional rights and their rights and privileges under the various revenue statutes must be heard and determined by the District Court under the Federal Rules of Civil Procedure. See Rules 24 and 81(a) (3). The Court finds it is probable that the representation of the Taxpayers’ interest by existing parties may be inadequate, and that the Taxpayers may be bound by a judgment in the action. This Court is of the opinion that unless the Taxpayers are permitted to intervene, they would not be aggrieved parties, entitling them to an appeal. The order of the District Court is reversed and this matter is remanded to the District Court with direction that the Taxpayers’ motion to intervene be granted. . Appellants’ motion filed with this Court to stay the effective date of the order was granted." }, { "docid": "3245856", "title": "", "text": "and that while a privilege created by state law may be recognized as a matter of federal common law, the question of such recognition is not controlled by either the statutes or rules of decision of the state in which the federal court sits. Reisman cited Falsone v. United States (5th Cir. 1953), 205 F.2d 734; In re Albert Lindley Lee Memorial Hospital (2nd Cir. 1953), 209 F.2d 122; and Sale v. United States (8th Cir. 1956), 228 F.2d 682, with approval. Each of those cases are based upon the rationale that federal law is controlling in a case such as this. Falsone expressly rejected the contention that “the competency and privilege of witnesses is governed by state laws” in a proceeding to enforce an Internal Revenue summons. In reliance upon United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, 82 A.L.R. 1376 (1931); and the 8th Circuit cases of Brownson v. United States (8th Cir. 1929), 32 F.2d 844, and Doll v. Commissioner of Internal Revenue (8th Cir. 1945), 149 F.2d 239, and the Fifth Circuit case of Shambaugh v. Scofield (5th Cir. 1942), 132 F.2d 345, that court held in Falsone that the federal statutes authorizing the issuance of an Internal Revenue Service summons were enacted to effectuate a federal constitutional power and are therefore the supreme law of the land, to which any conflicting state law, constitutional or statutory, must yield. In the Albert Lindley Lee Memorial Hospital case, the Second Circuit rejected appellant’s contention that the law of New York controlled the question of physician-patient privilege. The Second Circuit stated its agreement with Falsone from the Fifth Circuit and expressly held that “[the] determination of what evidence is admissible in an income tax investigation authorized by 26 U.S. C.A. § 3614(a), is a matter to be decided according to federal law.” Sale v. United States, an Eighth Circuit case followed Falsone and In re Albert Lindley Lee Memorial Hospital, although, on the particular facts there involved, it was not necessary to reach the question of whether state or federal law was controlling." }, { "docid": "23335070", "title": "", "text": "appealability, while not necessary to disposition of Reisman, does settle a conflict among the various courts of appeals. This court has consistently held orders directing compliance with an investigative summons appealable. United States v. Kulukundis, 329 F.2d 197 (2d Cir. 1964); In re Albert Lindley Lee Memorial Hospital, 209 F.2d 122 (2d Cir. 1953). See also O’Connor v. O’Connell, 253 F.2d 365 (1st Cir. 1958); Falsone v. United States, 205 F.2d 734 (5th Cir. 1953); Bouschor v. United States, 316 F.2d 451 (8th Cir. 1963); D. I. Operating Co. v. United States, 321 F.2d 586 (9th Cir. 1963). Contra, In re Davis, 303 F.2d 601 (7th Cir.), cert, granted, Davis v. Soja, 371 U.S. 810, 83 S.Ct. 45, 9 L.Ed.2d 53 (1962), judgment vacated and dismissed for mootness, 374 U.S. 495, 83 S.Ct. 1863, 10 L.Ed.2d 1043 (1963). . The Ninth Circuit did indicate that a clear showing of relevancy would be required in third-party tax investigation, Hubner v. Tucker, 245 F.2d 35 (1957), but that case involved an overbroad and sweeping order that failed to specify the particular records essential to the investigation. Thus, the protective measures imposed by the court might have been a response to an egregious order. In any event, this court has consistently refused to apply a probable cause standard to such a summons. See, e. g., Foster v. United States, 265 F.2d 183 (2d Cir. 1959), cert, denied, 360 U.S. 912, 79 S.Ct. 1297, 3 L.Ed.2d 1261 (1960); United States v. Siegel, 263 F.2d 530 (2d Cir. 1959). Judge Kaufman, then on the district court did use the words “probable cause” in a case involving a third-party summons, but it would appear from the context and the cases cited that by this was meant only that some connection be shown between the taxpayer under investigation and the person against whom the order is issued from which it is reasonable to believe that the records might include information relevant to the investigation. Application of Levine, 149 F.Supp. 642 (S.D.N.Y.), aff’d 243 F.2d 175 (2d Cir. 1957). See also United States v. Ryan, 320 F.2d 500" }, { "docid": "22649365", "title": "", "text": "procedure provided by Congress to cover only a default or contumacious refusal to honor a summons before a hearing officer. But even in such cases, just as in a criminal prosecution under § 7210, the witness may assert his objections at the hearing before the court which is authorized to make such order as it “shall deem proper.” § 7604 (b). Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 239 F. 2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 228 F. 2d 682. In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In re Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank v. United States, supra. And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U. S. 61 (1939); Brody v. United States, 243 F. 2d 378. Finally, we hold that such orders are appealable. See O’Connor v. O’Connell, 253 F. 2d 365 (C. A. 1st Cir.) ; In re Albert Lindley Lee Memorial Hospital, supra; Falsone v. United States, supra; Bouschor v. United States, 316 F. 2d 451 (C. A. 8th Cir.); Martin v. Chandis Securities Co., 128 F. 2d 731 (C. A. 9th Cir.); D. I. Operating Co. v. United States, 321 F. 2d 586 (C. A. 9th Cir.). Contra, Application of Davis, 303 F. 2d 601 (C. A. 7th Cir.). It follows that with a stay order a witness would suffer no injury while testing the summons. Nor would there be a difference should the witness indicate — as has Peat, Marwick, Mitchell & Co. — that he would" }, { "docid": "10021693", "title": "", "text": "as he shall deem proper, not inconsistent with the law for the punishment of con-tempts * * *.” * * * As we read the legislative history, § 7604(b) remains in this comprehensive procedure provided by Congress to cover only a default or contumacious refusal to honor a summons before a hearing officer. But even in such cases, just as in a criminal prosecution under § 7210, the witness may assert his objections at the hearing before the court which is authorized to make such order as it “shall deem proper.” § 7604(b). Reisman v. Caplin, supra, [375 U.S.] at 446-449, 84 S.Ct. at 512-513. (Footnotes, except Footnote 5, omitted.) The Court concluded by rejecting plaintiffs’ other assertions of the inadequacy of the statutory scheme: Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, [9 Cir.,] 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, [8 Cir.,] 228 F.2d 682. In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he, too, may intervene. See In re Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank v. United States, supra. And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U.S. 61 [59 S.Ct. 685, 83 L.Ed. 1108] (1939); Brody v. United States, [1 Cir.,] 243 F.2d 378. Finally, we hold that such orders are ap-pealable. See O'Connor v. O’Connell, 253 F.2d 365 (C.A. 1st Cir.); In re Albert Lindley Lee Memorial Hospital, supra; Falsone v. United States, supra; Bous-chor v. United States, 316 F.2d 451 (C.A. 8th Cir.); Martin v. Chandis Securities Co., 128 F.2d 731 (C.A. 9th Cir.); D." }, { "docid": "6378163", "title": "", "text": "in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1939), which held that an order compelling compliance with a grand jury subpoena was not final and therefore not appealable. At page 330, 60 S.Ct. at page 543, the court stated: “The doctrine of finality is a phase of the distribution of authority within the judicial hierarchy. But a proceeding like that under § 12 of the Interstate Commerce Act may be deemed self-contained, so far as the judiciary is concerned — as much so as an independent suit in equity in which appeal will lie from an injunction without the necessity of waiting for disobedience. After the court has ordered a recusant witness to testify before the Commission, there remains nothing for it to do. Not only is this true with respect to the particular witness whose testimony is sought; there is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted were the offending witness permitted to appeal. The proceeding before the district court is not ancillary to any judicial proceeding. So far as the court is concerned, it is complete in itself.” Several circuits faced with the question before us have observed the foregoing distinction and concluded that an order compelling compliance with a summons issued pursuant to 26 U.S.C. § 7602 (or the equivalent provision in the 1939 Code) is a final decision and appealable. Brownson v. United States, 32 F.2d 844 (8th Cir. 1929); Falsone v. United States, 205 F.2d 734 (5th Cir. 1953); In re Albert Lindley Lee Memorial Hospital, 209 F.2d 122 (2nd Cir. 1953); O’Connor v. O’Connell, 253 F.2d 365 (1st Cir. 1958); Bouschor v. United States, 316 F.2d 451 (8th Cir. 1963). Compare Application of Colton, 291 F.2d 487 (2nd Cir. 1961) [proceeding initiated by witness by filing of motion to vacate I.R.S. summons]. In several cases appealability seems to have been assumed sub silentio, notably, First National Bank of Mobile v. United States, 267 U.S. 576, 45 S.Ct. 231, 69 L.Ed. 796 (1925), and Local 174, International" } ]

[ { "docid": "7750505", "title": "", "text": "their differences on other issues, see infra Part III. A., n. 5, all members of the Lipscomb panel agreed that Westmoreland is still the law of the Fifth Circuit. See id. at 313 (Wiener, J.), 354 (Duhé, J., concurring in part, dissenting in part), 365 (Smith, J., dissenting). Two circuits, the Second and the Third, conclude that § 666 requires the government to prove at least some minimal nexus between the bribery and the federal benefits beyond that explicitly required in § 666(b). See Zwick, 199 F.3d at 682 n. 7; United States v. Santopietro, 166 F.3d 88, 93 (2d Cir.1999). In Santopietro, the Second Circuit recognized that Salinas limited its decision in United States v. Foley, 73 F.3d 484 (2d Cir.1996), but concluded that it left untouched that part of Foley holding that § 666 “requires at least some connection between the bribe and a risk to the integrity of the federal funded program.” Santopietro, 166 F.3d at 93. The Foley Court reached the conclusion that § 666 required the government to prove a connection between the bribe and the federal funds only after finding the statute to be ambiguous and then turning to the legislative history to resolve that ambiguity. Foley, 73 F.3d at 489. Despite the long-standing principle of statutory construction that the title of a statute cannot control the plain language of the statute, the Third Circuit reasoned that the title of § 666, “Theft or bribery-concerning programs receiving Federal funds,” implied that the statute contains a minimal nexus requirement. Zwick, 199 F.3d at 682. It avoided the “literal interpretation” of the statute and instead relied upon legislative history to construct a “plausible, albeit more contextual ] alternative” reading. Id. at 683. It reasoned that “Salinas found § 666(a)(1)(B) clear and unambiguous only on the question of whether the government must prove that the corrupt activity had a demonstrated effect on federal funds or programming,” id. at 682 n. 7, but that “nothing in Salinas prevented it] from determining that § 666(a)(1)(B) is ambiguous on the issue of whether there is a federal connection requirement,” id." } ]

[ { "docid": "22354934", "title": "", "text": "Committee might well have sought to exercise federal criminal jurisdiction up to its constitutional limits, leaving the issue to the courts to decide. C. The Views of Other Courts Whatever the reason for § 666’s silence on this question, the courts have struggled to produce the answer. Some district courts have tested § 666 against the Tenth Amendment, treating the statute as an emanation of the spending power, and have come to varying conclusions. Addi tionally, four of our fellow appellate courts have examined the sweep of § 666, either as a statutory matter or a constitutional one, and are also divided. Lipscomb relies on United States v. Zwick, in which the Third Circuit declined to apply § 666 to conduct such as his: Interpreting § 666 to have no federal interest requirement produces serious concerns as to whether Congress exceeded its power under the Spending Clause in enacting this statute. See McCormack, 31 F.Supp.2d at 187-89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause. To avoid this supposed constitutional problem, the Zimck court believed that to read § 666 literally is to err, and held that “§ 666 requires that the government prove a federal interest is implicated by the defendant’s offense conduct.” Not to require a nexus; reasoned the Third Circuit, would erase significant federal-state boundaries by turning § 666 into a general anti-corruption law, which, in the Third Circuit’s view, Congress had not intended. What then, under Zwick, would constitute a federal interest? “The amount of federal funds” alone, reasoned the Zwick court, could constitute the interest if the federal funds provided “the greater part of a township’s budget”; if not, the offense conduct would have to implicate a substantive or programmatic interest, even though" }, { "docid": "13303700", "title": "", "text": "government neither alleged nor proved that the conduct for which [he] was indicted, convicted, and sentenced had any connection with the expenditure of federal funds or posed any threat to the integrity and proper operation of a federal program.” See Salinas, 522 U.S. at 60-61, 118 S.Ct. 469; United, States v. Santopietro, 166 F.3d 88, 93 (2d Cir.1999) (Salinas may be read as requiring a threat to a federal program’s integrity and proper operation to assure § 666 is not unconstitutionally applied); United States v. Zwick, 199 F.3d 672, 687 (3d Cir.1999) (§ 666 requires government to prove federal interest is implicated by defendant’s offense conduct); United States v. Phillips, 219 F.3d 404, 412-14 (5th Cir.2000) (§ 666 does not reach misconduct of local officials whose actions do not threaten the integrity of federal funds or programs); but see United States v. Dakota, 188 F.3d 663, 668 (6th Cir.1999). The Government responded that Kansas City’s receipt of at least $10,000 in federal benefits provided the necessary federal connection. The district court denied Morgan’s motion without holding a hearing. In the district court’s view, Morgan’s claim was proeedurally barred because he did not raise it on appeal, and he did not qualify for the actual innocence exception to procedural bar because his claim was one of legal, rather than factual, error. The district court also rejected Morgan’s motion on the merits, holding the necessary federal connection was supplied by the city’s receipt of at least $10,000 in one year. Morgan appealed, and we certified two questions for our review: (1) whether 18 U.S.C. § 666 can be constitutionally applied to punish acts of local bribery that did not threaten the integrity of federal benefits received by the City or the City’s administration of any federal program, and (2) whether Morgan’s claim that his conduct was beyond the power of the federal government to proscribe is a claim of “actual innocence” he is entitled to raise for the first time on collateral review. “Appellate review is limited to the issues specified in the certificate of appealability.” DeRoo v. United States, 223 F.3d" }, { "docid": "12396882", "title": "", "text": "and a cooperative agreement between the two entities. Here, the tax assessor’s office was independent of the parish. The parish exercised no control or supervision over the tax assessor's office or its employees. The tax assessor’s office enforced state law, not parish law. Furthermore, the service that the tax assessor’s office provided the parish resulted from the mandate of state law, not from an agreement between the parish and the assessor’s office. Consequently, the factors that allowed the court to find an agency relationship in Moeller cannot be found in this record. Nor is there any comparable relationship to the facts in Westmoreland or Marmolejo. Thus, the dissent's conclusion that \"we have already decided the statutory question before us contrary to the majority opinion” is incorrect. . The Second Circuit has reaffirmed the post-Salinas validity of Foley. See United States v. Santopietro, 166 F.3d 88, 93 (2d Cir.1999) (\"[T]o the extent that Foley requires at least some connection between the bribe and a risk to the integrity of the federal funded program, nothing in Salinas disturbs such a requirement.... Thus, even after Salinas, Foley would not permit the Government to use section 666(a)(1)(B) to prosecute a bribe paid to a city’s meat inspector just because the city’s parks department had received a federal grant of $10,000.”). . See, e.g., Zwick, 199 F.3d at 682-83 (\"The most literal interpretation — that the statute lacks a federal connection requirement — is troubling from an interpretative standpoint in that it broadens the range of activity criminalized by the statute and alters the existing balance of federal and state powers by encompassing acts already addressed under state law in which the federal government may have little interest.”). See also George D. Brown, Stealth Statute-Corruption, the Spending Power, and the Rise of 18 U.S.C. § 666, 73 Notre Dame L.Rev. 247, 257, 266, 312 (1998). . See, e.g., Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1222, 143 L.Ed.2d 311 (1999) (\"[WJhere a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other" }, { "docid": "16820501", "title": "", "text": "criminal conduct related to city council members, who, by voting up or down on bids, ultimately decide how federal money will be spent. Reyes argues that we should follow a line of cases decided after the Supreme Court announced its opinion in Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). In Salinas, the Court held that to sustain a conviction under § 666 the government need not show that federal dollars were directly tied to the alleged bribery transaction. Id. at 58, 118 S.Ct. 469. The Court, however, declined to detail the connection required under § 666 or even state whether such a connection is required at all. Id. at 59, 118 5.Ct. 469. The two post-Salinas cases that Reyes urges us to follow now—United States v. Zwick, 199 F.3d 672 (3d Cir.1999), and United States v. Santopietro, 166 F.3d 88 (2d Cir.1999)—enunciated a degree of connectivity between the federal dollars and the charged conduct perhaps more exacting than other recent cases, of. United States v. Dakota, 188 F.3d 663, 668 (6th Cir.1999)(upholding a conviction under § 666 where the defendant was alleged to have received kickbacks on an Indian tribe’s lease of gaming machines and the tribe, for purposes not specified by the court, received yearly federal funds in excess of the statutory amount); United States v. Grossi 143 F.3d 348, 350 (7th Cir.1998)(upholding a conviction under § 666 where the defendant, a township supervisor, received kickbacks for making distributions from the town’s general assistance program, which received no federal money). We are not convinced that Salinas wrought a change upon our earlier precedents. Even if we were to follow the two cases proffered by Reyes, however, we would arrive at the same result. In one of Reyes’s cases, United States v. Zwick, the Third Circuit concluded that the uses for which federal funds were provided — snow removal and prevention of stream-bank erosion — bore “no obvious connection” to the charged conduct and that the defendant’s conduct did not therefore constitute a violation of § 666. 199 F.3d at 688. There, an" }, { "docid": "2643447", "title": "", "text": "prove that a federal interest is implicated by the offense conduct), and United States v. Santopietro, 166 F.3d 88, 92-93 (2d Cir.1999) (similar, endorsing the post-Salinas vitality of prior Second Circuit law interpreting the statute to require that the offense conduct threaten the integrity and proper operation of a federal program), with, e.g., United States v. Sabri, 326 F.3d 937, 940-53 (8th Cir.2003) (no connection between the offense conduct and a case-specific federal interest is required by either the Constitution or the statute, which was lawfully enacted under the Necessary and Proper Clause and not the Spending Clause). Unsurprisingly, Corrente and Autiello prefer the approach exemplified by Zwick and Santopietro. They emphasize that Salinas explicitly left open whether some connection between the offense conduct and a federal interest is required for the statute to be constitutionally applied. See 522 U.S. at 60-61, 118 S.Ct. 469 (declining to decide the broader constitutional issue because the statute was constitutionally applied on the case facts). They argue that requiring a connection such as the one identified in Zwick and Santopietro is necessary to maintain an appropriate state-federal balance in a criminal law area that has been the traditional province of the states. While these appeals were under advisement, the Supreme Court granted a writ of certiorari in Sabri and resolved the circuit split in favor of the position adopted by the Eighth Circuit. See Sabri v. United States, — U.S. -, 124 S.Ct. 1941, 1945-49, 158 L.Ed.2d 891 (2004). If error can be “plain” within the meaning of Fed. R.Crim.P. 52(b) even if it only becomes so while the case in which it is raised is on appeal, see Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), we see no reason why it should not also be “patent” for purposes of applying the Zanghi principle, see 189 F.3d at 79-80, discussed and applied supra at 84-85. Because application of Zanghi requires that we disregard the nexus instruction upon which Corrente and Autiel-lo base their sufficiency challenges to their joint federal bribery conspiracy convictions, we must reject" }, { "docid": "2643445", "title": "", "text": "never less than $10,000) between 1991 and 1999. A portion of that aid (conferred in connection with a federal anti-domestic violence program) was used in and around 1996(1) to train dispatchers for the police unit that, among their other duties, called companies on the City’s tow list when towing was needed, and (2) to purchase the communications and computer equipment used by the dispatchers who made these calls. Corrente and Autiello argue that their convictions cannot stand because there is insufficient evidence of a connection between their conduct and the federal funds received by the police department. The district court instructed the jury, without objection, that such a connection is required. The court described the connection (in relevant part) as follows: “[T]he Government must ... prove that there is somé connection between the alleged bribe and the federal funds received by the local government or agency....” Corrente and Autiello contend that the “federal funds” evidence described in the preceding paragraph is patently inadequate to ground a finding that such a connection existed in this case. The two concede that the statute itself does not require that the offense conduct have an effect on the federal funds. See Salinas, 522 U.S. at 61, 118 S.Ct. 469 (“[A]s a matter of statutory construction, § 666(a)(1)(B) does not require the Government to prove the bribe in question had any particular influence on federal funds ....”) (emphasis supplied). They also acknowledge that, at the time of oral argument, a post-Saimas circuit split had emerged over whether, as a statutory and/or constitutional matter, some connection between the offense conduct and a federal interest (if not federal funds themselves) was required. Compare, e.g., United States v. Zwick, 199 F.3d 672, 682-88 (3d Cir.1999) (treating the statute as having been enacted under the Spending Clause and holding, in part because the Constitution requires that “legislation regulating behavior of entities receiving federal funds must ... be based upon a federal interest in the particular conduct,” (citing South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)), that the statute requires the government to" }, { "docid": "10823827", "title": "", "text": "McCormack, 31 F.Supp.2d at 187-89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause. Thus, we hold that § 666 requires that the government prove a federal interest is implicated by the defendant’s offense conduct. In so holding, we part ways with the Sixth Circuit’s holding in Dakota and agree with the result reached by the Second Circuit, as expressed most recently in Santopietro, and the District Court for the Southern District of California in its preSalinas Frega decision. Given that the Supreme Court found a sufficient federal connection existed in Salinas, we surmise that a highly attenuated implication of a federal interest will suffice for purposes of § 666. We can conceive of several ways in which the government could prove a federal interest in a § 666 in light of this threshold. The amount of federal funds could provide the requisite federal implication, even if the purpose of those funds has no explicit relationship to the subject of the bribe. If, for example; in a given year, the greater part of a township’s budget came from federal funds, bribery of a township agent for any purpose might be said to implicate federal interests. Absent that situation, the offense conduct would have to somehow implicate a particular substantive federal interest, as the Supreme Court found it did in Salinas, where federal funds were being provided to house federal prisoners in local prisons. Examples from other cases may be illustrative. The Second Circuit found a sufficient federal connection in Santopie-tro when real estate developers made cor: rupt payments to defendants to secure defendants’ influence with city agencies overseeing housing and urban development programs that were the beneficiaries of federal funds. See Santopietro, 166 F.3d at 93-94. The Second Circuit" }, { "docid": "12396847", "title": "", "text": "programs. Without an agency relationship to the recipient of federal funds, § 666 does not reach the misconduct of local officials. 3 Our analysis and holding today is consistent with our previous observation that “[although the conduct prohibited by section 666 need not actually affect the federal funds received by the agency, there must be some nexus betiveen the criminal conduct and the agency receiving federal assistance.” Moeller, 987 F.2d at 1137 (emphasis added). Although we have not elaborated on this statement, the Supreme Court has suggested, as we have observed earlier, that the statute might require just such a nexus or connection between a bribe or kickback and the expenditure of federal funds. Salinas, 118 S.Ct. at 474. In a similar vein, the Second Circuit had held that “the assessment of the thing’s value must be connected, even if only indirectly, to the integrity of federal program funds.” United States v. Foley, 73 F.3d 484, 490 (2d Cir.1996). So too has the Third Circuit required this connection. See Zwick, supra, 199 F.3d at 686-87. But see United States v. Dakota, 188 F.3d 663 (6th Cir.1999) (dismissing nexus requirement argument without discussion). The absence of this “nexus” or “connection” thus reinforces our conclusion that Phillips was not an agent of a recipient of federal funds for purposes of § 666. 4 Finally, we should observe that our construction of the statutory term “agent” is an appropriate method for deciding this case because the convictions on these facts raise troubling constitutional issues, which we would otherwise have to address. Congress’ authority to enact § 666 rests on the Spending Clause of the Constitution. See U.S. Const., art. I, § 8. Though broad, the power of Congress to impose duties on non-federal entities under the Spending Clause is not without limits. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (citation omitted). The Court has stated: “[Cjonditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’ ” Id. (citations omitted). This § 666 prosecution" }, { "docid": "13303711", "title": "", "text": "local government; and (3) that government receives more than $10,000 per year in federal funds. See 18 U.S.C. § 666. The statute’s sweeping language implies that the federal government may prosecute bribers whose activities bear no direct relation to the government’s receipt of federal funds. See Salinas v. United States, 522 U.S. 52, 56-57, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (recognizing that the language of § 666 authorizes almost limitless criminal liability because of the “expansive, unqualified language”). In Salinas, a statutory interpretation case, the Supreme Court observed that Congress had enacted a breathtakingly broad criminal statute. But the Court was not asked to probe the constitutionality of § 666. Salinas challenged only the meaning of the words in the statute. See id. at 59-60, 118 S.Ct. 469. Two circuits have recently discussed the constitutionality of § 666, and upheld the law as a valid exercise of Congress’s Spending Clause power. See United States v. Santopietro, 166 F.3d 88, 92-94 (2d Cir.1999); United States v. Zwick, 199 F.3d 672, 687 (3d Cir.1999). Yet both the Second and Third Circuits were troubled by the sweeping breadth of § 666. Each court determined that § 666 could be saved from constitutional infirmity by reading into the text of the statute an additional “germaneness,” or “nexus,” requirement. These courts in effect mandate that the quid pro quo directly impact funds that are federal in origin. The approach taken by the Second and Third Circuits is fundamentally flawed for two reasons. First, and most obviously, federal courts are not free to rewrite the federal penal code. The Supreme Court has repeatedly admonished courts not to inject new elements into federal criminal statutes. Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. Only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language. This proposition is not altered simply because application of a statute is challenged on constitutional grounds. Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary" }, { "docid": "10823826", "title": "", "text": "local conduct into a matter for federal enforcement involving a substantial extension of federal law enforcement resources. See Bass, 404 U.S. at 350, 92 S.Ct. 515. We will not transform § 666 into a general federal anti-corruption statute when Congress has not clearly expressed its intention to do so. See McCormack, 31 F.Supp.2d at 186 (expressing concern about adopting government’s interpretation); Frega, 933 F.Supp. at 1540. As the Supreme Court stated in Bass, “consistent with our regard for the sensitive relation between federal and state criminal jurisdiction, our reading preserves as an element ... a requirement suited to federal criminal jurisdiction alone.” 404 U.S. at 351, 92 S.Ct. 515. Finally, when a statute is unclear, we will construe it so as to avoid constitutional concerns, assuming that such construction does not amount to a rewriting of the statute. See Albertini, 472 U.S. at 680, 105 S.Ct. 2897. Interpreting § 666 to have no federal interest requirement produces serious concerns as to whether Congress exceeded its power under the Spending Clause in enacting this statute. See McCormack, 31 F.Supp.2d at 187-89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause. Thus, we hold that § 666 requires that the government prove a federal interest is implicated by the defendant’s offense conduct. In so holding, we part ways with the Sixth Circuit’s holding in Dakota and agree with the result reached by the Second Circuit, as expressed most recently in Santopietro, and the District Court for the Southern District of California in its preSalinas Frega decision. Given that the Supreme Court found a sufficient federal connection existed in Salinas, we surmise that a highly attenuated implication of a federal interest will suffice for purposes of § 666. We can conceive of" }, { "docid": "2643446", "title": "", "text": "The two concede that the statute itself does not require that the offense conduct have an effect on the federal funds. See Salinas, 522 U.S. at 61, 118 S.Ct. 469 (“[A]s a matter of statutory construction, § 666(a)(1)(B) does not require the Government to prove the bribe in question had any particular influence on federal funds ....”) (emphasis supplied). They also acknowledge that, at the time of oral argument, a post-Saimas circuit split had emerged over whether, as a statutory and/or constitutional matter, some connection between the offense conduct and a federal interest (if not federal funds themselves) was required. Compare, e.g., United States v. Zwick, 199 F.3d 672, 682-88 (3d Cir.1999) (treating the statute as having been enacted under the Spending Clause and holding, in part because the Constitution requires that “legislation regulating behavior of entities receiving federal funds must ... be based upon a federal interest in the particular conduct,” (citing South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)), that the statute requires the government to prove that a federal interest is implicated by the offense conduct), and United States v. Santopietro, 166 F.3d 88, 92-93 (2d Cir.1999) (similar, endorsing the post-Salinas vitality of prior Second Circuit law interpreting the statute to require that the offense conduct threaten the integrity and proper operation of a federal program), with, e.g., United States v. Sabri, 326 F.3d 937, 940-53 (8th Cir.2003) (no connection between the offense conduct and a case-specific federal interest is required by either the Constitution or the statute, which was lawfully enacted under the Necessary and Proper Clause and not the Spending Clause). Unsurprisingly, Corrente and Autiello prefer the approach exemplified by Zwick and Santopietro. They emphasize that Salinas explicitly left open whether some connection between the offense conduct and a federal interest is required for the statute to be constitutionally applied. See 522 U.S. at 60-61, 118 S.Ct. 469 (declining to decide the broader constitutional issue because the statute was constitutionally applied on the case facts). They argue that requiring a connection such as the one identified in Zwick" }, { "docid": "12396904", "title": "", "text": "as representing or acting on behalf of an agency can affect its funds even if the action does not directly involve financial disbursement. There is no authority in the text of § 666, legislative history, or caselaw to support the majority's holding that the tax assessor cannot be an officer of the Parish because his duties and responsibilities are defined by state law. . As the majority notes, several of our sister circuits have required the government to prove that a federal interest is implicated by the defendant’s conduct to constitutionally allow a conviction under § 666. See United States v. Zwick, 199 F.3d 672, 687 (3d Cir.1999) (\"[W]e hold that 666 requires that the government prove a federal interest is implicated by the defendant’s offense conduct.”); United States v. Santopietro, 166 F.3d 88, 93 (2d Cir.1999) (noting that it \"would not permit the Government to use section 666(a)(1)(B) to prosecute a bribe paid to a city's meat inspector in connection with a substantial transaction just because the city’s parks department had received a federal grant of $10,000”). However, as described above, ”[t]he Fifth Circuit [has] contrasted its own position, expressed in Westmoreland, that the statute does not require any relation between the $5,000 thing of value and the federal funds received by the local agency.” Santopietro, 166 F.3d at 91. Admittedly, the Supreme Court’s decision in Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) “may be read to indicate that the threat to the integrity and proper operation of a federal program created by the corrupt activity is necessary to assure that the statute is not unconstitutionally applied.” Santopietro, 166 F.3d at 91. However, as the Second Circuit noted in Santopietro, Salinas did not dispute our decisions in Westmoreland and Marmolejo; rather, it expressly reserved the question of whether “the statute requires some other kind of connection between a bribe and the expenditure of federal funds.” See Santopietro, 166 F.3d at 91 (citing Salinas, 118 S.Ct. at 474). We are thus bound, at least as a panel of three judges, to our analysis" }, { "docid": "22354935", "title": "", "text": "things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause. To avoid this supposed constitutional problem, the Zimck court believed that to read § 666 literally is to err, and held that “§ 666 requires that the government prove a federal interest is implicated by the defendant’s offense conduct.” Not to require a nexus; reasoned the Third Circuit, would erase significant federal-state boundaries by turning § 666 into a general anti-corruption law, which, in the Third Circuit’s view, Congress had not intended. What then, under Zwick, would constitute a federal interest? “The amount of federal funds” alone, reasoned the Zwick court, could constitute the interest if the federal funds provided “the greater part of a township’s budget”; if not, the offense conduct would have to implicate a substantive or programmatic interest, even though “a highly attenuated implication of a federal interest will suffice.” Since deciding Zwick, the Third Circuit has clarified that the federal interest can reach very deep into the ranks of local government. In diametric opposition to the Third Circuit, two other circuits have declined to read an extra-textual nexus into § 666. The Sixth Circuit has rejected a constitutional attack on its pre-Salinas position that except for the textual $10,000 threshold, § 666 does not require a nexus between federal funds and the offense conduct. The Supreme Court recently declined to review this result. The Seventh Circuit likewise has held that the broad text of § 666 controls: “It is not our part to trim § 666 by giving its text a crabbed reading.” Noting that the fungibility of money militates against a narrow reading of § 666, the Seventh Circuit concluded as a statutory matter that the district court properly convicted a township supervisor, even though his bribe-taking related only to his control of the town’s general-assistance program, which did not receive any federal" }, { "docid": "22355083", "title": "", "text": "is “necessary and proper” to execute the spending power. Armed with knowledge of Congress’s purpose in enacting § 666, I examine whether the statute’s employment here — to prosecute a city councilmember for accepting bribes in return for pursuing local taxi regulations beneficial to a local taxi company — is “necessary and proper for carrying into execution” the spending power. In other words, what are the minimum factors that must be present to make a prosecution under § 666 “necessary and proper” under the spending power? I am aware of no court that has dealt with the issue of what uses of § 666 are necessary and proper to effect the spend-, ing power. Of no help is United States v. Suarez, 263 F.3d 468 (6th Cir.2001). The Second and Third Circuits have narrowly interpreted § 666, however, for the express purpose of avoiding a constitutional question. Their views on what limitations are necessary to keep § 666 within the realm of constitutionality are therefore useful. In Zwiclc, the court interpreted § 666 to require a relationship between the prohibited conduct and a federal interest, because doing otherwise would raise constitutional problems: Interpreting § 666 to have no federal interest requirement produces serious concerns as to whether Congress exceeded its power under the Spending Clause in enacting this statute. See McCormack, 31 F.Supp.2d at 187-89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause. Zwick, 199 F.3d at 687 (footnote omitted). The court thus rejected the government’s position that no connection between the bribery and the federal funds was necessary beyond proof that the agency in question had received federal funds in excess of $10,000. To do otherwise, the court reasoned, would eviscerate significant federal-state boundaries by turning §" }, { "docid": "10823811", "title": "", "text": "application of federal bribery provisions to non-federal employees, the Court found that it would be “incongruous” to restrict § 666 so that it applies only when a demonstrated effect on federal funds is shown. Salinas, 118 S.Ct. at 473. Significantly, the Court found only that the “text of § 666(a)(1)(B) is unambiguous on the point under consideration here.” Id. at 475 [emphasis added]. The Court did not reach a holding on whether another kind of federal connection was required under § 666, believing that the facts of Safinas’ case presented a sufficient connection: We need not consider whether the statute requires some other kind of connection between a bribe and the expenditure of federal funds, for in this case the bribe was related to the housing of a prisoner in facilities paid for in significant part by federal funds themselves. And that relationship is close enough to satisfy whatever connection the statute might require. Id. at 474. The Court accordingly rejected a challenge to the. constitutionality of the provision, at least as applied to Safinas: Furthermore, there is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case. Beltran was without question a prisoner held in a jail managed pursuant to a series of agreements with the Federal Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about § 666(a)(l)(B)’s application in other cases, the application of § 666(a)(1)(B) to Safinas did not extend federal power beyond its proper bounds. Id. at 475. C. Posi-Safinas Courts clearly have recognized that Salinas left open the question of whether § 666 requires that a federal interest be implicated by the offense conduct. See United States v. Dakota, 188 F.3d 663 (6th Cir.1999) (finding that in Salinas, “the nature of any necessary connection is left unanswered”); United States v. Santopietro, 166 F.3d 88, 93 (2d Cir.1999) (finding that the Supreme Court “was careful to note that the statute survived the constitutional as-applied challenge because the benefit obtained by means of the" }, { "docid": "22355084", "title": "", "text": "a relationship between the prohibited conduct and a federal interest, because doing otherwise would raise constitutional problems: Interpreting § 666 to have no federal interest requirement produces serious concerns as to whether Congress exceeded its power under the Spending Clause in enacting this statute. See McCormack, 31 F.Supp.2d at 187-89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause. Zwick, 199 F.3d at 687 (footnote omitted). The court thus rejected the government’s position that no connection between the bribery and the federal funds was necessary beyond proof that the agency in question had received federal funds in excess of $10,000. To do otherwise, the court reasoned, would eviscerate significant federal-state boundaries by turning § 666 into a general anti-corruption statute, an intention not expressed by Congress. Id. at 686. In the pre-Salinas case of United States v. Foley, 73 F.3d 484, 493 (2d Cir.1996), the court held that the conduct prosecuted under § 666 must be “shown in some way to touch upon federal funds.” The court also held that the local government or agency whose transaction involves $5,000 or more and at which the corruption is aimed must itself receive at least $10,000 in federal funds. Id. The court re-evaluated Foley post-Salinas in United States v. Santopietro, 166 F.3d 88 (2d Cir.1999), recognizing that Salinas had made plain that the corruption need not have a value of $5,000 to the local government on which the corruption is practiced. Instead, there only must be the receipt of at least $10,000 of federal funds and a corrupt transaction valued at $5,000 or more by any of the parties' — the local government, the party paying the bribe, or the bribe recipient. Thus, the Santopietro court reversed and held that the" }, { "docid": "13303699", "title": "", "text": "posed any threat to the integrity and proper operation of a federal program. The district court denied the motion, and Morgan pleaded guilty to two counts of conspiracy to violate § 666. In the plea agreement, Morgan agreed not to appeal. In exchange, the Government dropped the seven bribery counts. After Morgan’s plea, the Supreme Court confirmed the language of § 666(a)(1)(B) does not require the Government to prove the bribe affected federal funds. See Salinas v. United States, 522 U.S. 52, 61, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). The Court also held the statute’s application to the defendant did not extend federal power beyond its proper bounds. See id. at 60-61, 118 S.Ct. 469. Because the bribe threatened the integrity and proper operation of the federal program, the statute was constitutional as applied to the facts of the case. See id. at 61, 118 S.Ct. 469. Morgan later filed this 28 U.S.C. § 2255 motion to vacate his conviction and sentence asserting § 666 was unconstitutional as applied in his case because “[t]he government neither alleged nor proved that the conduct for which [he] was indicted, convicted, and sentenced had any connection with the expenditure of federal funds or posed any threat to the integrity and proper operation of a federal program.” See Salinas, 522 U.S. at 60-61, 118 S.Ct. 469; United, States v. Santopietro, 166 F.3d 88, 93 (2d Cir.1999) (Salinas may be read as requiring a threat to a federal program’s integrity and proper operation to assure § 666 is not unconstitutionally applied); United States v. Zwick, 199 F.3d 672, 687 (3d Cir.1999) (§ 666 requires government to prove federal interest is implicated by defendant’s offense conduct); United States v. Phillips, 219 F.3d 404, 412-14 (5th Cir.2000) (§ 666 does not reach misconduct of local officials whose actions do not threaten the integrity of federal funds or programs); but see United States v. Dakota, 188 F.3d 663, 668 (6th Cir.1999). The Government responded that Kansas City’s receipt of at least $10,000 in federal benefits provided the necessary federal connection. The district court denied Morgan’s motion without" }, { "docid": "10823812", "title": "", "text": "Furthermore, there is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case. Beltran was without question a prisoner held in a jail managed pursuant to a series of agreements with the Federal Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about § 666(a)(l)(B)’s application in other cases, the application of § 666(a)(1)(B) to Safinas did not extend federal power beyond its proper bounds. Id. at 475. C. Posi-Safinas Courts clearly have recognized that Salinas left open the question of whether § 666 requires that a federal interest be implicated by the offense conduct. See United States v. Dakota, 188 F.3d 663 (6th Cir.1999) (finding that in Salinas, “the nature of any necessary connection is left unanswered”); United States v. Santopietro, 166 F.3d 88, 93 (2d Cir.1999) (finding that the Supreme Court “was careful to note that the statute survived the constitutional as-applied challenge because the benefit obtained by means of the bribe — the preferential treatment— ‘was a threat to the integrity and proper operation of the federal program.’ ”). Therefore, Salinas has not prevented courts from reaching conflicting conclusions on whether § 666 requires proof of a federal interest in the offense conduct. The Sixth Circuit held post-Salinas that § 666 does not require proof of a connection between the offense conduct and federal funds or programming. See Dakota, 188 F.3d at 668 (finding no connection requirement based on its determination in its pre-Salinas decision in Valentine, a theft case, and providing no additional case cites or reasoning). Taking the opposite view, the Second Circuit held that its holding in Foley■ — that some federal connection was required — remained good law post-^aimas. See Santopietro, 166 F.3d at 93. The District Court of Massachusetts determined post -Salinas that § 666 was unconstitutional as applied to the defendant in that case, reasoning that the conduct at issue was not related to a legitimate national problem as required by South Dakota v. Dole, 483 U.S. 203, 207-08," }, { "docid": "13303710", "title": "", "text": "for Morgan’s appeal because, without doubt, Morgan is not actually innocent of that crime. At his change-of-plea hearing, Morgan pleaded guilty to each of the elements of § 666. Hence Morgan cannot sustain the sole challenge he may raise in this appeal. Cf. DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000) (“[Ajppel-late review is limited to the issues specified in the certificate of appealability.”). Morgan does have a meritorious claim. We simply cannot reach that claim because it wasn’t included in his COA. His meritorious claim is a facial constitutional challenge to § 666, the very challenge we ae-knowledge in the majority opinion — a cruel irony. Section 666 prohibits acts of bribery, theft, and fraud against state and local governments (and certain other organizations) receiving funds under federal assistance programs. See Fischer v. United States, 529 U.S. 667, 120 S.Ct. 1780, 1785, 146 L.Ed.2d 707 (2000). The statute enacts criminal penalties for those who: (1) offer anything with a value of more than $5000; (2) to any agent of a state or local government; and (3) that government receives more than $10,000 per year in federal funds. See 18 U.S.C. § 666. The statute’s sweeping language implies that the federal government may prosecute bribers whose activities bear no direct relation to the government’s receipt of federal funds. See Salinas v. United States, 522 U.S. 52, 56-57, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (recognizing that the language of § 666 authorizes almost limitless criminal liability because of the “expansive, unqualified language”). In Salinas, a statutory interpretation case, the Supreme Court observed that Congress had enacted a breathtakingly broad criminal statute. But the Court was not asked to probe the constitutionality of § 666. Salinas challenged only the meaning of the words in the statute. See id. at 59-60, 118 S.Ct. 469. Two circuits have recently discussed the constitutionality of § 666, and upheld the law as a valid exercise of Congress’s Spending Clause power. See United States v. Santopietro, 166 F.3d 88, 92-94 (2d Cir.1999); United States v. Zwick, 199 F.3d 672, 687 (3d Cir.1999). Yet both" }, { "docid": "10823813", "title": "", "text": "bribe — the preferential treatment— ‘was a threat to the integrity and proper operation of the federal program.’ ”). Therefore, Salinas has not prevented courts from reaching conflicting conclusions on whether § 666 requires proof of a federal interest in the offense conduct. The Sixth Circuit held post-Salinas that § 666 does not require proof of a connection between the offense conduct and federal funds or programming. See Dakota, 188 F.3d at 668 (finding no connection requirement based on its determination in its pre-Salinas decision in Valentine, a theft case, and providing no additional case cites or reasoning). Taking the opposite view, the Second Circuit held that its holding in Foley■ — that some federal connection was required — remained good law post-^aimas. See Santopietro, 166 F.3d at 93. The District Court of Massachusetts determined post -Salinas that § 666 was unconstitutional as applied to the defendant in that case, reasoning that the conduct at issue was not related to a legitimate national problem as required by South Dakota v. Dole, 483 U.S. 203, 207-08, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) and thus Congress exceeded its bounds under the spending clause. See United States v. McCormack, 31 F.Supp.2d 176 (D.Mass.1998). III. Zwick asks us to add our voice to the chorus of opinions regarding the need to prove that a federal interest was implicated by corrupt acts in a § 666 prosecution. To reach our own determination of whether § 666 requires such proof, we begin by examining the statutory language itself. See Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 233 (3d Cir.1998) (evaluating the Individuals with Disabilities Education Act) (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Section 666(a)(1)(B) requires proof that a bribe was given “in connection with” any business or transaction of an agency described in subsection (b), namely those receiving funds under certain federal assistance programs. The language does not state explicitly that the government must show a connection between the bribe and federal interests. Yet, the title of § 666, “Theft or" } ]

[ { "docid": "1408201", "title": "", "text": "889 (7th Cir.2001). Though infrequent, Lattanzio’s alleged outright solicitation of numerous sex acts from Quantock is considerably more “severe” than the type of “occasional vulgar banter, tinged with sexual innuendo” that has previously been deemed to fall short of the hostile workplace standard. See, e.g., McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 480 (7th Cir.1996) (finding that three “sexually suggestive” comments by a co-worker did not “unreasonably interfere [ ]” with the plaintiffs working environment). Given that Lattanzio made his repeated requests for sex directly to Quantock, see Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (sexual innuendo not “severe” because made out of the presence of the claimant), and in light of Lattanzio’s significant position of authority at the company and the close working quarters within which he and Quantock worked, a reasonable jury could find the sexual propositions sufficiently “severe,” as an objective matter, to alter the terms of Quantock’s employment. Moreover, there remains a triable issue of fact as to whether Quantock herself viewed that conduct as “severe or pervasive” (the “subjective” component of the hostile environment analysis). Quantock has presented evidence that she reported the conduct to a supervisor, sought treatment from a psychologist, and was “humiliated” on account of Lattanzio’s actions. A reasonable jury could therefore conclude that she did, in fact, view Lattanzio’s alleged conduct as “severe,” and that she did, as a result, experience a “hostile” workplace. Quantock also submitted evidence establishing the remaining elements of her sexual-harassment claim — that the conduct was directed at her because of her sex, and that there was a basis for employer liability. See Hilt-Dyson, 282 F.3d at 462-63. Given the nature of the harassing conduct — a male supervisor’s direct requests for sex from his female subordinate — a reasonable jury could conclude that the harassment was directed at Quantock “because of her sex.” See Haugerud v. Amery School Dist., 259 F.3d 678, 695 (7th Cir.2001) (“[I]t would be reasonable to conclude that a male [employee] would not have been treated the same way.”). More over, Quantock’s evidence that" } ]

[ { "docid": "23604699", "title": "", "text": "her employment, including that “the only valuable thing to a woman is that she has breasts and a vagina,” was insufficient to demonstrate a hostile work environment); Adusumilli v. City of Chi, 164 F.3d 353, 361-62 (7th Cir.1998) (holding that plaintiffs complaints of teasing; ambiguous comments about bananas, rubber bands, and low-neck tops; staring and attempts to make eye contact; and four isolated incidents where a co-worker briefly touched her arm, fingers, or buttocks did not constitute sexual harassment). In short, minor or isolated incidents are generally insufficient to rise to the level of objectively offensive conduct. By contrast, sustained physical contact can raise otherwise merely objectionable conduct to the level of objectively offensive conduct. For instance, in King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 535 (7th Cir.1990), this Court concluded that the defendant’s conduct rose to an objectionable level when he followed the plaintiff into a bathroom at an office holiday party, telling her that he “had to have her” and that “he would have her.” Despite the plaintiffs protests, the defendant forcibly kissed and fondled her, stopping when the plaintiffs boyfriend came into the bathroom. Id. Similarly, in Gentry v. Export Packaging, Co., 238 F.3d 842 (2001), this Court held that the defendant’s constant physical contact with the plaintiff to be objectively offensive. In that case, the defendant invited the plaintiff implicitly to have sex with him and showed her arguably “off color” pictures. Moreover, the defendant hugged the plaintiff “with two-armed embraces” almost every other working day for two months. Id. at 850-51. Here, Kampmier estimated that during her employment at the Loyalton, Badell hugged her fifty to sixty times, jumped in her lap ten times, touched her buttocks thirty times, and made the comment that she could turn any woman gay ten to twelve times. Kampmier also alleged that Badell stated that she “make[s] Carol (her girlfriend) come every night within the first five minutes” and also commented that she could perform the same act on Kampmier. Based on the sustained nature of the physical contact, combined with Badell’s sexually" }, { "docid": "4461452", "title": "", "text": "short of being sufficiently pervasive, hostile, or abusive to support a legal claim of a hostile work environment.” We agree. Knoop alleged only three relatively isolated incidents over a period of approximately two and a half years. Knoop claims that Brock told vulgar jokes, that he twice placed his vibrating pager on her thigh as he passed her in the hall, and most significantly, he pulled at her overalls after she told him she was wearing a thong. While there is no bright line rule as to what' constitutes a hostile work environment, the plaintiffs allegations must depict conduct that could be construed as pervasive enough to alter the conditions of her employment and to create an abusive situation. When Knoop’s allegations are compared to other cases where the plaintiff showed the existence of a hostile workplace, it becomes clear that she has not made a prima facie showing of a hostile work environment. In EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 508-09 (6th Cir.2001), we found that the plaintiff made a prima facie showing of a hostile workplace where a male supervisor grabbed a male employee’s genitals on two separate occasions, stalked the employee several times a day, and where the employee’s co-workers taunted him for making a harassment complaint. Likewise, in Williams, we found that a hostile work environment was shown when over four months, a male supervisor stared at the plaintiffs breasts and said;“[y]ou can rub up against me anytime ... you would kill me ... I don’t know if I can handle it, but I’d die with a smile on my face,” came up behind her, put his arm around her neck and told her that she “left the dick out of the hand” when she wrote “Hancock Furniture Company,” and came up behind her on another occasion while she was bending over and told her to back up into him. 187 F.3d at 562-64. In contrast, a hostile work environment was not shown where, over a two month period, a male supervisor continuously made sexually suggestive comments about the female plaintiffs appearance, touched her breast" }, { "docid": "7757073", "title": "", "text": "(8th Cir.2002). To support a cause of action, “conduct must be extreme and not merely rude or unpleasant to affect the terms and conditions of employment.” Alagna v. Smithville R-II Sch. Dist., 324 F.3d 975 at 980 (8th Cir.2003). Although “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment,’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), we have recognized such extremely serious incidents may occur. See Mating v. Ark. Dep’t of Corr., 243 F.3d 452, 454-57 (8th Cir.2001) (jury question where during a business trip, a supervisor would not leave Moring’s hotel room for several hours, insisted she “owed” him for her job, attempted to kiss her, and touched her thigh). Finally, we must evaluate all of the circumstances of a case, rather than merely focus on the initial episode of harassment. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). We agree with the district court that the lone grabbing incident and subsequent encounter does not rise to the level of severe or pervasive conduct to alter the conditions of Meriwether’s employment and create an abusive working environment. See Alagna, 324 F.3d at 976-80 (finding male teacher’s inappropriate conduct toward female faculty member over two school years, such as touching her, commenting on her appearance, saying “I love you,” exhibiting a demeanor of a sexual nature, calling her many times at home, and giving her two romance novels and another gift, was “not sufficiently severe or pervasive”); Duncan v. Gen. Motors Corp., 300 F.3d 928, 931-35 (8th Cir.2002) (finding no severe or pervasive harassment where male co-worker made a pass at Duncan who had to work with him for three years, suffering additional boorish behavior until she resigned); see also Hawkins v. Holloway, 316 F.3d 777, 782-83, 785-86 (8th Cir.2003) (finding sheriff did not violate his employees’ substantive due process rights when he repeatedly made sexually suggestive com- merits and grabbed, pinched, and poked their clothed buttocks on numerous occasions);" }, { "docid": "9622805", "title": "", "text": "hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.... It is not a bright line, obviously, this line between a merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other .... Id. at 430-31 (internal citations omitted). Since our decision in Baskerville, we have on many occasions distinguished between harassing and merely objectionable conduct. See, e.g., Hilt-Dyson, 282 F.3d at 463-64 (holding that plaintiffs allegations that supervisor rubbed her back, squeezed her shoulder and stared at her chest during a uniform inspection while telling her to raise her arms and open her blazer were isolated incidents that, even when taken together, did not create a sufficient inference of a hostile work environment); Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (holding that plaintiffs complaints of eight gender-related comments during course of her employment, including that “the only valuable thing to a woman is that she has breasts and a vagina,” insufficient to demonstrate hostile work environment); Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir.1998) (finding plaintiffs complaints of teasing, ambiguous comments about bananas, rubber bands and low-neck tops, staring and attempts to make eye contact and four isolated incidents where a co-worker briefly touched her arm, fingers or buttocks did not constitute sexual harassment). With these precedents in mind, we conclude that the incidents that occurred prior to Copenharve’s physical assault of McPherson on March 21, 2001, although boorish, do not constitute the severe or pervasive conduct necessary to create an objectively hostile work environment in violation of Title VII. While Copenharve’s inquiries about what color bra McPherson was wearing, his suggestive tone of voice when asking her whether he could “make a house call” when she called in sick and the one occasion when he pulled back her tank top with his fingers were lamentably inappropriate, we agree with the district court" }, { "docid": "17888403", "title": "", "text": "words that we are saying a little bit” in front of Clark-Stone.). The timing of this office banter is not entirely clear, though Johnson claims with respect to Pearson that he has engaged in sexually-charged behavior since the 1990s, and that such behavior changed over time from verbal comments to physical harassment, with Pearson most recently harassing her by touching her inappropriately on July 18, 2005. Report of Investigation (“ROI”) Tab B-1, Johnson Decl. ¶¶ 8, 26 (May 22, 2006) (“ROI Tab B-1”). Johnson claims that Pearson made inappropriate comments to her beginning in the 1990s, Pl.’s Dep. 108:19-2, but that “[she] thought [she] could handle the talking,” so she did not tell her supervisors about it. See Pl.’s Dep. 109:11. The Secretary claims that the first alleged physical contact between Johnson and Pearson could not have been any earlier than June 2005 and consisted of a slap on the behind. See Reply in Supp. of Def.’s Mot. for Summ. J. at 6. Johnson disagrees with this time estimate, instead placing the complained-of touching in or around January 2005, and claiming that she told her first line supervisor, Clark-Stone, about Pearson’s conduct several times prior to August 2005. See ROI B-1 ¶ 8, 14; Pl.’s Decl. ¶ 3 (“When he first touched me in 2005 I reported him to my supervisor, Karen Clark-Stone. I believe I talked with Karen Clark-Stone in January/February 2005.”). According to Johnson, Pearson’s behavior became more aggressive in the 2000s, and became worse in early 2005, when John Uqdah — her workplace friend and co-worker — retired, as Pearson accused Johnson of having a sexual relationship with Uqdah, sexually propositioned her, and “tried to kiss her, grabbed and pinched her breast, and grabbed and spanked her buttocks.” Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 1-2. Johnson also claims that Pearson came into her office uninvited, “walked around [Johnson’s] desk, towered over [Johnson], [and] tried to kiss [Johnson], and then ridiculed her when [she] refused to participate.” Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 2, n. 1 (citing Guinta Dep. 57:4-58:15). Moreover, following" }, { "docid": "22141339", "title": "", "text": "a two-year period, including comment “your elbows are the same color as your nipples,” another comment that plaintiff had big thighs, touching plaintiffs arm, and attempts to look down the plaintiffs dress, were insufficient to support hostile-environment claim); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264-67 (5th Cir.1999) (noting it was “dubious” whether several sexually oriented comments and gestures and an implied threat of retaliation for refusing a sexual advance would be sufficient to establish a hostile environment); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998) (holding that statement that plaintiff had the “sleekest ass” in office plus single incident of “deliberately” touching plaintiffs “breasts with some papers that he was holding in his hand” were insufficient to alter the terms or conditions of the plaintiffs employment); Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir.1998) (holding actions insufficient to support hostile environment claim where co-employees teased plaintiff, made sexual jokes aimed at her, asked her what “putting one rubber band on top and another on the bottom means,” commented about her low neck tops, repeated staring at her breasts with attempts to make eye contact, and four incidents of touching her arm, fingers or buttocks); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1365-66 (10th Cir.1997) (holding five “sexually-oriented, of fensive” statements over sixteen months insufficient to show hostile environment, even though one of the harasser’s statements occurred while he put his arm around plaintiff, looked down her dress and said, “well, you got to get it when you can”); Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167-68 (7th Cir.1996) (holding offensive comments including repeatedly calling the plaintiff a “sick bitch” insufficient under Harris because not necessarily gender-related); Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753-54 (4th Cir.1996) (holding evidence that the harasser “bumped into [the plaintiff], positioned a magnifying glass over [the plaintiffs] crotch, flipped his tie over to see its label, gave him a congratulatory kiss in the receiving line at [a] wedding, and stared at him in the bathroom” insufficient to establish violation" }, { "docid": "1780664", "title": "", "text": "lead a reasonable person in Scott’s position to believe any kind of non-business interaction was in the offing. The advances — culminating in Seabrook’s putting his tongue in Scott’s mouth twice, id. at 64-65 — were highly obtrusive and offensive. In addition, Sea-brook allegedly told Scott to undress after Scott had rejected his advances. Id. at 66-67. Considering the incident as a whole, a reasonable jury could conclude that this was an “extraordinarily severe” single event, Mathirampuzha, 548 F.3d at 79, that materially altered the conditions of Scott’s union membership. Thus, we need not consider separately the question of whether the additional conduct by the union — that notably included a union delegate, Officer Dawkins, mocking and insulting Scott with respect to her purported relationship with Seabrook, Scott Dep. at 334-36 — -is needed to make out the hostile environment claim. Our conclusion is bolstered by decisions arising in the employment context finding a viable hostile environment claim in similarly serious circumstances. See, e.g., Hostetler v. Quality Dining, Inc., 218 F.3d 798, 809 (7th Cir.2000) (co-worker held victim’s face in his hands, forced his tongue in her mouth, and began to unfasten her bra); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.1998) (“single incident” in which a customer pulled waitress by the hair, grabbed her breast, and placed his mouth on it); Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 454-55 (8th Cir.2001) (verbal sexual advances with touching of thigh and attempt to kiss in a motel room on an out-of-town trip); Rozell v. Ross-Holst, 2007 U.S. Dist. LEXIS 46450, at *1-2 (S.D.N.Y. June 21, 2007) (supervisor attempted to kiss a plaintiff at a Christmas party and subsequently hacked into plaintiffs private email account); Fall v. Ind. Univ. Bd. of Trustees, 12 F.Supp.2d 870, 873 (N.D.Ind.1998) (supervisor called employee into his office on pretext, closing door, and forcibly kissed her while groping her breasts); Prindle v. TNT Logistics of N. Am., 331 F.Supp.2d 739, 750-751 (W.D.Wis.2004) (one breast touching incident); Ferguson v. Chicago Hous. Auth, 155 F.Supp.2d 913, 916-17 (N.D.Ill.2001) (repeated but limited acts of verbal" }, { "docid": "10549803", "title": "", "text": "Intentionally grabbing, squeezing, or otherwise feeling an intimate part of another’s body is vastly different than brushing against it — whether on purpose or by accident. See Redd, 678 F.3d at 180 (distinguishing Green Tree on the grounds that “[t]here was no suggestion that [defendant supervisor] had engaged in the substantially more intrusive behavior alleged here, of repeatedly touching her with his hands or any other part of his body, or that he had ‘felt’ her breasts”); id. (characterizing “brushes” against breast as less severe than rubbing up against or feeling breasts); cf. Vito v. Bausch & Lomb Inc., 403 Fed.Appx. 593, 597 (2d Cir.2010) (affirming summary judgment on hostile work environment claim where supervisor’s “right hand slipped down [from plaintiffs shoulder] and touched her right breast” (emphasis in original)). Recognizing this distinction, courts have found allegations similar to those here sufficient to withstand both motions to dismiss and for summary judgr ment. See, e.g., Guzman v. Macy’s Retail Holdings, Inc., No. 09 Civ. 4472(PGG), 2010 WL 1222044, at *5 (S.D.N.Y. Mar. 29, 2010) (concluding that 'allegation of sexual advance in which supervisor “pressed — as opposed to brushed — his genitals against” plaintiff employee was sufficient to withstand motion to dismiss (collecting cases)); Scott v. City of N.Y. Dep’t of Corr., 641 F.Supp.2d 211, 226 (S.D.N.Y.2009) (allegation of sexual advance in which co-worker kissed plaintiff on the mouth twice was sufficient to withstand motion for summary judgment (collecting cases)); Wahlstrom v. Metro-N. Commuter R.R. Co., 89 F.Supp.2d 506, 521 (S.D.N.Y.2000) (concluding that allegation that co-worker slapped plaintiffs buttocks was sufficient to withstand summary judgment and noting that “the physical contact between the parties was neither harmless nor accidental” (collecting cases)). The Second Circuit has consistently “cautioned against setting the bar [for a hostile work environment claim] too high, noting that while a mild, isolated incident does not make a work environment hostile, the test is whether the harassment is of such quality or quantity that a reasonable employee would find the conditions of his employment altered for the worse.” Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir.2003) (citing" }, { "docid": "20734897", "title": "", "text": "Lake’s advances were objectively hostile. We have acknowledged before that “[djrawing the line” between what is and is not objectively hostile “is not always easy.” Baskerville, 50 F.3d at 430. On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. Id. (citations omitted). Perhaps the most heavily emphasized factor in our cases is whether there was inappropriate touching. See Worth, 276 F.3d at 268 (“The fact that conduct ... involves touching as opposed to verbal behavior increases the severity of the situation.”). This is especially true when the touching is of “an intimate body part.” Id. (“We have previously recognized that direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”). For example, we have affirmed a damages award or at least rejected summary judgment where there were allegations that a defendant placed his hand on the plaintiffs breast for several seconds, id., when a coworker forcibly kissed the plaintiff and nearly removed her brassiere, Hostetler, 218 F.3d at 807-08, when a manager slid his hand up the plaintiffs shorts, reaching her underwear, Patton, 455 F.3d at 814, and when the plaintiffs supervisor “hugged her fifty to sixty times, jumped in her lap ten times, [and] touched her buttocks thirty times,” Kampmier, 472 F.3d at 941. Indeed, in cases where we have held that the evidence was insufficient to establish an objectively hostile work environment, we have emphasized that no touching occurred, e.g., Baskerville, 50 F.3d at 431 (immediately after offering factors to consider, noting the “[supervisor] never touched the plaintiff’), or that the touching was “relatively limited,” Saxton, 10 F.3d at 534. Judged against these cases, Turner’s complaints are sufficient to survive summary judgment. Turner has identified at least five instances of explicit sexual harassment, three of which were aggressively physical. Turner’s claim that Lake grabbed his penis through" }, { "docid": "17888427", "title": "", "text": "this behavior became more aggressive over time, and escalated during the timeframe of John Uqdah’s retirement. At that point, Johnson claims that Pearson threatened her, Pl.’s Stmt, at 10 (“Plaintiff would have no one in the workforce to protect her”), and began a course of physical intimidation and contact with Johnson that included attempts to kiss her, uninvited visits to her office, solicitations for sex, grabbing and pinching of her breast, and grabbing and spanking of her behind. See PL’s Opp.’n to Def.’s Mot. for Summ. J. at 1-2; Guinta Dep. at 57:4-58:15; Pl.’s Dep. 105:11, 24 & 107:2-3. In response to this behavior, Johnson complained to her supervisors and eventually left the workforce and sought medical treatment “for the job stress created by the sexual harassment.” See P.’s Opp.’n to Def.’s Mot. for Summ. J. at 2 n. 2. Johnson did not return to the Department of Veterans Affairs until almost three years later — and only then on a part-time basis. Id.; see also Pl.’s Ex. 2. This conduct is certainly inappropriate for the workplace, and a jury could find that the escalating nature of Pearson’s harassment is evidence of a hostile work environment. See Baker v. Library of Congress, 260 F.Supp.2d 59, 67 (D.C.Cir.2003) (finding that sex-based comments that increased in frequency and severity over time were evidence of a hostile work environment); Simms v. Ctr. for Corr. Health & Policy Studies, Civ. No. 06-2178(RCL), 794 F.Supp.2d 173, 192-93, 2011 WL 2621325, *14 (D.D.C. July 5, 2011) (finding that harassment that escalated over time could constitute a hostile work environment). Moreover, “evidence of [Johnson’s] mental state during this period provides further proof upon which a jury could find the existence of a hostile work environment.” Simms, 794 F.Supp.2d at 193, 2011 WL 2621325, at *15. Johnson has alleged that Pearson verbally harassed her and that this harassment eventually escalated to physical harassment in 2005. Johnson has also presented evidence that this harassment caused her to leave the workplace in 2005 and seek medical help from mental counselors, which delayed her return to the workplace until 2008. See" }, { "docid": "9453528", "title": "", "text": "was subjected to the “repeated use of sexually-explicit commentary and sexual innuendo” (though no physical touching or quid pro quo suggestion was involved) (Dey, 28 F.3d at 1453, 1450) were all held to have established Title VII violations. Two weeks ago Hutchinson v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1041-44 (7th Cir.) affirmed a jury finding of sexual harassment where a male supervisor left his office door open while discussing sex on the phone (to make sure his salacious comments would be heard by the female office employees), referred to one female employee as “Ms. Boobs,” regularly looked plaintiff up and down while making comments about her appearance and regularly blocked the way of female employees through the office so that they had to brush up against him as they passed. By contrast, a woman who complained that her boss called her a dumb blond, asked her out on dates, put his hand on her shoulder several times, placed “I love you” signs in her work area and attempted to kiss her in a bar (Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993)) and another woman who claimed that her manager “lurched” at her during a trip to the arboretum, as if to grab her, and made a pass at a jazz club (Saxton v. AT & T, 10 F.3d 526, 533-34 (7th Cir.1993)) have both been held by the same court to have failed to allege objectively hostile work environments. Weiss, 990 F.2d at 337 reasoned that the alleged misconduct was “relatively isolated” and not “serious.” Similarly Saxton, 10 F.3d at 534 found that the manager’s advances (though “undoubtedly inappropriate”) were not “severe or pervasive.” Understandably in light of the nature of the misconduct involved, simple respondeat superior notions do not apply in the hostile-work-environment context. Instead an employer is hable for the sexual misconduct of an employee only if the employer knew or should have known about the harassment and failed to take adequate remedial action (Saxton, 10 F.3d at 535-36; Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990);" }, { "docid": "17888426", "title": "", "text": "working environment.’ ” Akonji, 517 F.Supp.2d at 97 (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). The Secretary does not address the severity or persuasiveness of Pearson’s conduct, nor does he address the effect it had on the terms and conditions of Johnson’s employment and Johnson herself. Indeed, the Secretary does not consider at all whether Pearson’s conduct constituted harassment; instead, he contends that the Department is not liable even if the harassment occurred. See Def.’s Mot. for Summ. J. at 12 (“The Defendant does not discuss in this motion whether the alleged misconduct constitutes harassment. Even if the acts of alleged misconduct occurred and assuming, arguendo, they constitute harassment, the Defendant would not be liable for the alleged harassment.”). Johnson, however, has pointed to specific evidence from depositions, declarations, medical records, and other testimony in the record before this Court that raise a genuine factual dispute as to whether she experienced a hostile work environment. Johnson alleges that — beginning in 1997— Pearson made inappropriate comments to her, Pl.’s Dep. 108:3-22, and that this behavior became more aggressive over time, and escalated during the timeframe of John Uqdah’s retirement. At that point, Johnson claims that Pearson threatened her, Pl.’s Stmt, at 10 (“Plaintiff would have no one in the workforce to protect her”), and began a course of physical intimidation and contact with Johnson that included attempts to kiss her, uninvited visits to her office, solicitations for sex, grabbing and pinching of her breast, and grabbing and spanking of her behind. See PL’s Opp.’n to Def.’s Mot. for Summ. J. at 1-2; Guinta Dep. at 57:4-58:15; Pl.’s Dep. 105:11, 24 & 107:2-3. In response to this behavior, Johnson complained to her supervisors and eventually left the workforce and sought medical treatment “for the job stress created by the sexual harassment.” See P.’s Opp.’n to Def.’s Mot. for Summ. J. at 2 n. 2. Johnson did not return to the Department of Veterans Affairs until almost three years later — and only then on a part-time basis. Id.; see also Pl.’s Ex. 2. This conduct is certainly inappropriate for" }, { "docid": "1780665", "title": "", "text": "(co-worker held victim’s face in his hands, forced his tongue in her mouth, and began to unfasten her bra); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.1998) (“single incident” in which a customer pulled waitress by the hair, grabbed her breast, and placed his mouth on it); Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 454-55 (8th Cir.2001) (verbal sexual advances with touching of thigh and attempt to kiss in a motel room on an out-of-town trip); Rozell v. Ross-Holst, 2007 U.S. Dist. LEXIS 46450, at *1-2 (S.D.N.Y. June 21, 2007) (supervisor attempted to kiss a plaintiff at a Christmas party and subsequently hacked into plaintiffs private email account); Fall v. Ind. Univ. Bd. of Trustees, 12 F.Supp.2d 870, 873 (N.D.Ind.1998) (supervisor called employee into his office on pretext, closing door, and forcibly kissed her while groping her breasts); Prindle v. TNT Logistics of N. Am., 331 F.Supp.2d 739, 750-751 (W.D.Wis.2004) (one breast touching incident); Ferguson v. Chicago Hous. Auth, 155 F.Supp.2d 913, 916-17 (N.D.Ill.2001) (repeated but limited acts of verbal sexual advances and unwanted touching); Barrett v. Omaha Nat’l Bank, 584 F.Supp. 22, 24, 30 (D.Neb.1983) (incident of physical touching inside the confined space of an automobile) (liability denied on other grounds), aff'd, 726 F.2d 424 (8th Cir.1984); Redman v. Lima City Sch. Dist. Bd. of Educ., 889 F.Supp. 288, 291, 293 (N.D.Ohio 1995) (plaintiff forced against wall and supervisor proceeded to fondle and rub against the plaintiff in a sexual manner). Cases involving physical contact that were not found to be sufficient to constitute sexual harassment were less severe than what has been alleged here. See, e.g., Quinn, 159 F.3d at 768 (two alleged incidents of hostile treatment, in which a supervisor made a comment about the plaintiffs body and touched her breasts with some papers); Koelsch v. Beltane Elecs. Corp., 46 F.3d 705, 706-08 (7th Cir.1995) (company president rubbed the plaintiffs leg, grabbed her buttocks, and asked her for dates); Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 528, 534-35 (7th Cir.1993) (supervisor put his hand on the plaintiffs leg and" }, { "docid": "4461453", "title": "", "text": "of a hostile workplace where a male supervisor grabbed a male employee’s genitals on two separate occasions, stalked the employee several times a day, and where the employee’s co-workers taunted him for making a harassment complaint. Likewise, in Williams, we found that a hostile work environment was shown when over four months, a male supervisor stared at the plaintiffs breasts and said;“[y]ou can rub up against me anytime ... you would kill me ... I don’t know if I can handle it, but I’d die with a smile on my face,” came up behind her, put his arm around her neck and told her that she “left the dick out of the hand” when she wrote “Hancock Furniture Company,” and came up behind her on another occasion while she was bending over and told her to back up into him. 187 F.3d at 562-64. In contrast, a hostile work environment was not shown where, over a two month period, a male supervisor continuously made sexually suggestive comments about the female plaintiffs appearance, touched her breast as he removed and replaced a pen from her shirt pocket, leered at her, and told her that if he had someone like her, he would never let her leave the house. See Stacy v. Shoney’s, Inc., No. 97-5393, 1998 WL 165139, at *1-3 (6th Cir.1998) (unpublished). The Seventh Circuit found that alleged harassment lacked severity where, over a two-year period, a male supervisor and co-workers, made sexual jokes about the plaintiff, commented on how she should eat a banana, told her not to wave at squad ears because people would think she was a prostitute, stared at her breasts, and touched her on the arms, fingers, and may have once poked at her buttocks. Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir.1998). Although Knoop’s allegations of harassment by Brock could certainly be construed as offensive, they are simply not substantial enough to satisfy the prima facie showing. Her claims depict isolated instances rather than an ongoing situation. Appellants retort that the harassment of Knoop was much more pervasive, relying on the" }, { "docid": "16067217", "title": "", "text": "grant of summary judgment where co-worker hugged plaintiff, touched her feet with his feet while they were seated together, attempt to touch her chest, and exposed himself); Jasmin v. New York State Dep’t of Labor, No. 98 Civ. 7569, 1999 WL 1225249, at *3 (S.D.N.Y. Dec. 28, 1999) (denying summary judgment where supervisory inspector threatened plaintiff with physical injury); Draeger v. Bronx-Lebanon Hosp. Ctr., No. 98 Civ. 3688, 1999 WL 562103, at *4 & n. 5 (S.D.N.Y. Aug. 2, 1999) (denying motion to dismiss where alleged conduct involved \"unwanted groping , and grabbing”); Matute v. Hyatt Corp., No. 98 Civ. 1712, 1999 WL 135204, at *3 (S.D.N.Y. Mar. 11, 1999) (finding triable question of fact where plaintiff alleged that his manager touched his penis and tried to kiss him); Funk v. F & K Supply, Inc., 43 F.Supp.2d 205, 216 (N.D.N.Y.1999) (refusing to grant judgment as a matter of law based on evidence of \"sexually offensive contacts, threats of physical violence, episodic tirades, physical assaults,” and inappropriate language); Rashid v. Beth Israel Med. Ctr., No. 96 Civ. 1833, 1998 WL 689931, at *3 (S.D.N.Y.1998) (denying summary judgment where plaintiffs supervisor allegedly “grabbed and squeezed her breasts, put his hand over her mouth, held her against the wall as she struggled to push him away with both hands, and touched her thigh”); Schiraldi v. AMPCO Sys. Parking, 9 F.Supp.2d 213, 220 (W.D.N.Y.1998) (stating that co-worker's grabbing plaintiff from behind and rubbing his penis against her buttocks while fully clothed created a hostile work environment); Yaba v. Roosevelt, 961 F.Supp. 611, 620 (S.D.N.Y.1997) (\"[A] serious incident of sexual touching and harassment .... if credited by a jury, could be judged sufficient to have created a hostile or offensive working environment.”). . See, e.g., Donovan v. Big v. Supermarkets, Inc., No. 98 Civ. 2842, 1999 WL 615100, at *6 (S.D.N.Y. Aug. 12, 1999); see also DeWitt v. Lieberman, 48 F.Supp.2d 280, 291 (S.D.N.Y.1999) (\"[It] is undisputed that [the employer] had an effective antiharassment policy in place.... Thus, the first element of the affirmative defense is met.”); Fierro v. Saks Fifth Ave., 13 F.Supp.2d" }, { "docid": "23032478", "title": "", "text": "276 F.3d 249, 268 (7th Cir.2001) (“[W]e have often recognized that even one act of harassment will suffice [to create a hostile work environment] if it is egregious.”); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.1998) (holding that a single incident of physically threatening and humiliating conduct can be sufficient to create a hostile work environment for a sexual harassment claim); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (“[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for the purposes of Title VII liability.”). By contrast, under a conjunctive standard, infrequent conduct, even if egregious, would not be actionable because it would not be “pervasive.” Harvill alleges that Rogers’ harassment began in July 2001 and continued until Gina Fisher, the Director of Human Resources, confronted Rogers with the allegations in February 2002. In her deposition, Harvill testified that, during that seven-month period, Rogers grabbed her and kissed her on the cheek, popped rubber bands at her breasts, fondled her breasts “numerous times,” patted her on her buttocks “numerous times,” and came behind her and rubbed his body against her. At. one point, Harvill estimated that Rogers touched her breasts or her buttocks perhaps as often as once a week— although she later stated that it may not have been as often as once a week. She also claims that on one occasion Rogers made comments to her about her sex life and her abilities in bed. Harvill stated that she protested every time Rogers touched her breasts and she also protested when Rogers would pat her buttocks. Undoubtedly, the deliberate and unwanted touching of Harvill’s intimate body parts can constitute severe sexual harassment. See, e.g., Worth, 276 F.3d at 268 (“[D]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”). Viewing the evidence in the light most favorable to Harvill, the non-movant, we conclude" }, { "docid": "23419941", "title": "", "text": "at 967 (experiencing unpleasant conduct and rude comments does not equate to severe or pervasive harassment that altered conditions of employment). Numerous cases have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here. See, e.g., Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872, 874 (5th Cir.) (holding that several incidents over a two-year period, including the comment “your elbows are the same color as your nipples,” another comment that plaintiff had big thighs, repeated touching of plaintiffs arm, and attempts to look down the plaintiffs dress, were insufficient to support hostile work environment claim), cert. denied, 528 U.S. 963, 120 S.Ct. 395, 145 L.Ed.2d 308 (1999); Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62 (7th Cir.1998) (holding conduct insufficient to support hostile environment claim when employee teased plaintiff, made sexual jokes aimed at her, told her not to wave at police officers “because people would think she was a prostitute,” commented about low-necked tops, leered at her breasts, and touched her arm, fingers, or buttocks on four occasions), cert. denied, 528 U.S. 988, 120 S.Ct. 450, 145 L.Ed.2d 867 (1999); Black v. Zaring Homes, Inc., 104 F.3d 822, 823-24, 826 (6th Cir.) (reversing jury verdict and holding behavior merely offensive and insufficient to support hostile environment claim when employee reached across plaintiff, stating “[njothing I like more in the morning than sticky buns” while staring at her suggestively; suggested to plaintiff that parcel 'of land be named “Hootersville,” “Titsville,” or “Twin Peaks”; and asked “weren’t you there Saturday night dancing on the tables?” while discussing property near a biker bar), cert. denied, 522 U.S. 865, 118 S.Ct. 172, 139 L.Ed.2d 114 (1997); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir.1993) (holding no sexual harassment when plaintiffs supervisor asked plaintiff for dates, asked about her personal life, called her a “dumb blond,” put his hand on her shoulder several times, placed “I love you” signs at her work station, and attempted to Mss her twice at work and once in a bar). Booth’s actions were" }, { "docid": "16353393", "title": "", "text": "Lindblom, but also that a reasonable employee in Lindblom’s position would have perceived as hostile or abusive. See Hams, 510 U.S. at 21, 114 S.Ct. 367; Saxton, 10 F.3d at 534. If the conduct was not so severe and pervasive as to create an objectively hostile work environment, the conduct “is beyond Title VII’s purview.” Harris, 510 U.S. at 21, 114 S.Ct. 367. Plaintiffs allegations have much in common with those in a recent case decided by the Seventh Circuit, Adusumilli, supra. In Adusumilli, the plaintiff, an administrative assistant at a police station, complained of a hostile work environment. She alleged that she was subjected to sexual joking and sexual comments by coworkers. She suffered several incidents in which coworkers stared at her breasts. She also experienced unwanted physical contact in the form of a touch on her upper arm, two instances of poking at her fingers, and one instance of poking at her buttocks. Adusumilli, 164 F.3d at 357. The Seventh Circuit held that the alleged conduct was “too tepid or intermittent or equivocal to make a reasonable person believe that [the plaintiff had] been discriminated against on the basis of her sex.” Adusumilli 164 F.3d at 362, quoting Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1168 (7th Cir.1996). Similarly, in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir.1993), the plaintiff complained of a hostile work environment caused by an overly amorous supervisor. On numerous occasions, the supervisor asked her for dates, called her a dumb blond, and put his hand on her shoulder. He attempted to kiss the plaintiff at a bar, and, on two occasions, he tried to kiss her in her office. The supervisor even placed an “I love you” sign in her work area. The Seventh Circuit held that these incidents did not amount to actionable sexual harassment because they were not sufficiently pervasive and severe from an objective perspective. Id. at 337. See also McKenzie v. Illinois Dept. of Transportation, 92 F.3d 473, 479-80 (7th Cir.1996) (holding that three sexually suggestive and offensive comments over a three-month period" }, { "docid": "16067216", "title": "", "text": "briefly touched her on two occasions); Salem v. Software Guidance & Assistance, Inc., No. 96 Civ. 8437, 1997 WL 777402, at *3 (S.D.N.Y. Dec. 16, 1997) (granting summary judgment where plaintiff’s supervisor “made sexually charged remarks, commented on the size of women’s breasts, and at one point touched plaintiff’s rear-end”); Samuels v. New York State Dep’t of Correctional Services, No. 94 Civ. 8645, 1997 WL 253209, at *7 (S.D.N.Y. May 14, 1997) (granting summary judgment where plaintiff complained of a sole incident of being poked in the breast during a fire drill); Gonzalez v. Kahan, No. CV 88-922, 1996 WL 705320, at *3 (E.D.N.Y. Nov. 25, 1996) (holding that plaintiff’s allegation that her professor gave her a brief \"bear hug” was insufficient to constitute a hostile work environment); Lamar v. Nynex Serv. Co., 891 F.Supp. 184, 185 (S.D.N.Y.1995) (ruling that allegations that plaintiff’s supervisor touched her hand and stared at her were \"too mild and innocuous to constitute sexual harassment as a matter of law”). . See also, e.g., Distasio, 157 F.3d at 63 (reversing grant of summary judgment where co-worker hugged plaintiff, touched her feet with his feet while they were seated together, attempt to touch her chest, and exposed himself); Jasmin v. New York State Dep’t of Labor, No. 98 Civ. 7569, 1999 WL 1225249, at *3 (S.D.N.Y. Dec. 28, 1999) (denying summary judgment where supervisory inspector threatened plaintiff with physical injury); Draeger v. Bronx-Lebanon Hosp. Ctr., No. 98 Civ. 3688, 1999 WL 562103, at *4 & n. 5 (S.D.N.Y. Aug. 2, 1999) (denying motion to dismiss where alleged conduct involved \"unwanted groping , and grabbing”); Matute v. Hyatt Corp., No. 98 Civ. 1712, 1999 WL 135204, at *3 (S.D.N.Y. Mar. 11, 1999) (finding triable question of fact where plaintiff alleged that his manager touched his penis and tried to kiss him); Funk v. F & K Supply, Inc., 43 F.Supp.2d 205, 216 (N.D.N.Y.1999) (refusing to grant judgment as a matter of law based on evidence of \"sexually offensive contacts, threats of physical violence, episodic tirades, physical assaults,” and inappropriate language); Rashid v. Beth Israel Med. Ctr., No." }, { "docid": "1780666", "title": "", "text": "sexual advances and unwanted touching); Barrett v. Omaha Nat’l Bank, 584 F.Supp. 22, 24, 30 (D.Neb.1983) (incident of physical touching inside the confined space of an automobile) (liability denied on other grounds), aff'd, 726 F.2d 424 (8th Cir.1984); Redman v. Lima City Sch. Dist. Bd. of Educ., 889 F.Supp. 288, 291, 293 (N.D.Ohio 1995) (plaintiff forced against wall and supervisor proceeded to fondle and rub against the plaintiff in a sexual manner). Cases involving physical contact that were not found to be sufficient to constitute sexual harassment were less severe than what has been alleged here. See, e.g., Quinn, 159 F.3d at 768 (two alleged incidents of hostile treatment, in which a supervisor made a comment about the plaintiffs body and touched her breasts with some papers); Koelsch v. Beltane Elecs. Corp., 46 F.3d 705, 706-08 (7th Cir.1995) (company president rubbed the plaintiffs leg, grabbed her buttocks, and asked her for dates); Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 528, 534-35 (7th Cir.1993) (supervisor put his hand on the plaintiffs leg and kissed her until she pushed him away, and on another occasion the supervisor lurched at the plaintiff and tried to grab her); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993) (supervisor asked the plaintiff for dates, called her a “dumb blond,” put his hand on her shoulder several times, placed “I love you” signs in her work area, and attempted to kiss her). The cases relied upon by the Seabrook defendants, see Seabrook Mem. at 9-11, do not require a different outcome. Christoforou v. Ryder Truck Rental, Inc., 668 F.Supp. 294 (S.D.N.Y.1987), the primary case relied on by the Seabrook defendants, was a decision following a bench trial. While the court’s decision rejecting the sexual harassment claim recounted the plaintiffs testimony in detail, the court made clear that it had discredited much of her testimony, id. at 299, and, in the end, found only that there was “some sexual tension between” the plaintiff and the supervisor, id. at 300. In Saxton, 10 F.3d at 528, 534-35, there was an attempted" } ]

[ { "docid": "6748592", "title": "", "text": "Ynez Band of Chumash Mission Indians, 983 F.Supp. 1317 (C.D.Cal.1997). No court ever suggested, however, that this possible defense could somehow turn into a license for tribal gaming which could survive even after the state came into compliance with its IGRA obligations. In light of the Rumsey decisions, the court finds that the State is now in compliance with its IGRA obligations and that, therefore, the Indians must cease all uncompacted Class III gaming. So as to present as complete a record as possible for any potential appeal, the court has examined the history of negotiations toward a tribal-state compact and has concluded that the State’s actions were not in bad faith. IGRA provides that the State “shall negotiate with the Indian tribe in good faith to enter into [a tribal-state] compact.” 25 U.S.C. § 2710(d)(3)(A). The qualification to this good faith negotiation requirement is that proposed gaming activities must be negotiated by the state “only if such activities are ... located in a State that permits such gaming for any purpose by any person, organization, or entity....” 25 U.S.C. § 2710(d)(1)(B). Inherent difficulties arise when, as here, there are disputes about the kinds of Class III gaming permitted by the state. Under such circumstances, tribes can be expected to insist, in entirely good faith, that gaming that they believe others in the State are being permitted to conduct also be permitted to them by the tribal-state compact. As to those games that the State disputes that others are being permitted to conduct, the State can be expected to refuse, in entirely good faith, to include those games in the tribal-state compact. The court finds that the negotiations toward tribal-state compacts with most of the defendant Tribes commenced as early as 1991 and continued in complete good faith from both sides until approximately 1992, when the course of negotiations made clear that the parties would be unable to agree on what kinds of gaming should be included in the tribal-state compacts until after legal disputes concerning what kinds of gaming was being permitted to others had been resolved. In order" } ]

[ { "docid": "21443401", "title": "", "text": "be lawful on Indian lands only i/such activities are— (A)authorized by an ordinance or regulation that— (i) is adopted by the governing body of the Indian Tribe having jurisdiction over such lands, (ii) meets the requirements of subsec- . tion (b) of this section, and (iii) is approved by the Chairman, (B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and (C) conducted in conformance with a Tribal-State compact entered into by the Indian Tribe and the State under paragraph (3) that is in effect. 25 U.S.C. § 2710(d)(1) (emphasis added). The IGRA provides that tribes are entitled to engage in all forms of Glass III gaming that a state permits for other citizens and requires the states to negotiate in good faith toward the execution of tribal-state compacts. 25 U.S.C. §§ 2710(d)(1)(B) & 2710(d)(3)(A). At issue in this case is whether another IGRA provision, 25 U.S.C. § 2719, is also applicable to Class III gaming that is the subject of a compact. Section 2719(a) generally prohibits gaming regulated by the IGRA on “after-acquired” (acquired in trust by the federal government for the benefit of a tribe after October 17,1988), off-reservation lands, with exceptions for certain circumstances. The only applicable circumstance is that gaming on such “after-acquired” land is permitted if the Secretary of the Interior determines that gaming on the land would be in the best interest of the Community and not detrimental to the surrounding community, after consultation with state and local officials, including officials of nearby tribes; in addition, the governor of the state must concur in the Secretary of the Interior’s determination. See 25 U.S.C. § 2719(b)(1)(A). III. DISCUSSION A. Applicability of 25 U.S.C. § 2719 We must determine if 25 U.S.C. § 2719, a provision generally prohibiting gaming on certain Indian lands acquired after October 17,1988 absent certain exceptions, applies to Class III gaming when the land is the subject of a valid tribal-state compact which permits Class III gaming on the land. In other words, when a tribe enters a valid, approved state-tribal compact for" }, { "docid": "19337508", "title": "", "text": "regulate Indian controlled gaming, we do not and will not support State jurisdiction.”). . Plaintiffs attempt to put the best face on IGRA's adoption of the ''permits such gaming for any purpose to any person” language from S. 1303 rather than the \"otherwise legal” language of S. 555. Plaintiffs argue that because the state permission language originated in S. 1303, which provided for exclusive federal regulation of class III gaming and which lacked the State-Tribal compact procedure, it must have referred only to gambling that was permitted on non-Indian land. But the language was taken from S. 1303 and substituted into S. 505 which did not provide for exclusive federal regulation. . There are several flaws in plaintiffs' argument that § 2710(d)(1)(B) precludes California from granting tribes exclusive class III gaming rights because Congress intended that such gaming would only take place in states with a history of regulating similar activities. (Pis.’ Motion at 30-33). When Congress drafted IGRA, it did not restrict class III gaming to states with such experience. Because it could lead to the untenable result in which states without this regulatory experience would be precluded from simultaneously granting gaming rights to Indians and non-Indians alike, such an interpretation of § 2710(d)(1)(B) is contrary to Congress' interest in preserving state sovereignty and providing tribes with an opportunity to develop gaming operations. Furthermore, Congress recognized that not every state compact would confer exclusive authority to regulate class III gaming on preexisting state regulatory bodies. See S.Rep. No. 100-446, at 13-14 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3083-84. . The Secretary’s approval specifically notes that the compacts limit gaming to \"the Tribes’ reservation land;” that through Proposition 1A, \"Californians amended their state's constitution to permit the Governor to compact with Indian tribes, subject to ratification by the State Legislature;” and that granting tribes exclusive class III gaming rights \"in no way violates the equal protection provisions of the United States Constitution.\" (Letter from Kevin Gover, May 5, 2000, Exh. B to Complaint). . Citing Williams v. Babbitt, 115 F.3d 657 (9th Cir.1997), plaintiffs contend that the Secretary’s interpretation of" }, { "docid": "8046486", "title": "", "text": "Billie’s motion to dismiss for failure to state a claim upon which relief can be granted. We affirm. I. The relevant facts may be briefly stated. The State commenced this action on July 29, 1996, and filed its amended complaint—the pleading at issue here—on September 9. In this complaint, the State alleged that the Tribe was operating “electronic or electromechanical facsimiles of games of chance” and that such operations constituted class III gaming' as defined by IGRA. See 25 U.S.C. § 2703(7)(B)(ii), (8) (1994). The Tribe operated these games despite the absence of a compact between the Tribe and the State regarding the regulation of class III gaming. The State also alleged that the Tribe planned to construct a new facility on its lands in order to conduct additional class III gaming. According to the State’s complaint, the operation of such games without a Tribal-State compact violates both federal and state law. In support of this claim, the State first points to IGRA’s rule that “[cjlass III gaming activities shall be lawful on Indian lands only if such activities are .. . conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under [section 2710(d)(3)] that is in effect.” 25 U.S.C. § 2710(d)(1)(C) (1994). Second, the State contends that the Tribe’s games are “gambling devices” within the meaning of 15 U.S.C. § 1171(a) (1994), and thus that 15 U.S.C. § 1175(a) (1994) makes it a crime to possess or use them within Indian country. IGRA creates an exception to this prohibition by providing that section 1175 “shall not apply to any gaming conducted under a Tribal-State compact that—(A) is entered into ... by a State in which gambling devices are legal, and (B) is in effect.” 25 U.S.C. § 2710(d)(6) (1994). The State argues, however, that this exception is inapplicable both because it has no compact with the Tribe and because the Tribe’s games constitute illegal “slot machines” under Florida law. See Fla. Stat. ch. 849.15-16 (1997) (making it a crime, inter alia, to “possess” or “permit the operation of’ such machines). Finally, the" }, { "docid": "2837081", "title": "", "text": "1083, 94 L.Ed.2d 244 (1987); Barona Group of Capitan Grande Band of Mission Indians v. Duffy, 694 F.2d 1185 (9th Cir.1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2091, 77 L.Ed.2d 301 (1983); Seminole Tribe v. Butterworth, 658 F.2d 310 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1717, 72 L.Ed.2d 138 (1982); Mashantucket Pequot Tribe v. McGuigan, 626 F.Supp. 245 (D.Conn.1986); Oneida Tribe of Indians v. Wisconsin, 518 F.Supp. 712 (W.D.Wis.1981). The IGRA establishes three classes of gaming, which are subject to differing degrees of tribal, state, and federal jurisdiction and regulation. Class I gaming is limited to social games for nominal prizes and traditional tribal ceremonial games, § 2703(6), and is subject only to tribal regulation, § 2710(a)(1). Class II gaming includes bingo and related games, as well as certain nonbanking card games. § 2703(7)(A). Banking card games, electronic games of chance, and slot machines are expressly excluded, § 2703(7)(B), but certain banking card games operated by Indian tribes in certain states on or before May 1, 1988 may be grandfathered as class II gaming, § 2703(7)(C). Class II gaming is generally not subject to state regulation, but is subject to some federal oversight by the National Indian Gaming Commission (“NIGC”), § 2710(b) and (c), in addition to tribal regulation, § 2710(a)(2). All other forms of gaming are classified as class III gaming. § 2703(8). Under section 2710(d)(1), class III gaming activities are lawful on Indian lands only if such activities are: (A)authorized by an ordinance or resolution that— (i)is adopted by the governing body of the Indian tribe having jurisdiction over such lands, (ii) meets the requirements of subsection (b) of this section, and (iii) is approved by the Chairman [of the NIGC], (B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and (C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) [of section 2710(d)] that is in effect. 25 U.S.C. § 2710(d)(1) (1988). A tribal-state compact is “in effect” when “notice of" }, { "docid": "2837082", "title": "", "text": "be grandfathered as class II gaming, § 2703(7)(C). Class II gaming is generally not subject to state regulation, but is subject to some federal oversight by the National Indian Gaming Commission (“NIGC”), § 2710(b) and (c), in addition to tribal regulation, § 2710(a)(2). All other forms of gaming are classified as class III gaming. § 2703(8). Under section 2710(d)(1), class III gaming activities are lawful on Indian lands only if such activities are: (A)authorized by an ordinance or resolution that— (i)is adopted by the governing body of the Indian tribe having jurisdiction over such lands, (ii) meets the requirements of subsection (b) of this section, and (iii) is approved by the Chairman [of the NIGC], (B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and (C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) [of section 2710(d)] that is in effect. 25 U.S.C. § 2710(d)(1) (1988). A tribal-state compact is “in effect” when “notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Register.” § 2710(d)(3)(B). In sum, class III gaming activities are subject to tribal and state regulation, as provided by a tribal ordinance, a tribal-state compact, and the IGRA. The Tribe sought to expand its gaming activities to include class III games of chance, such as those activities permitted by Connecticut law for certain nonprofit organizations during “Las Vegas nights.” Conn.Gen.Stat. §§ 7-186a to 7-186p (1989). Accordingly, counsel for the Tribe wrote a letter dated March 30, 1989 to the governor of Connecticut, William A. O’Neill, “to request that the State of Connecticut enter into negotiations with the Tribe for the purpose of entering into a Tribal-State compact governing the conduct of expanded gaming activities on the Tribe’s reserva tion in Ledyard [, Connecticut].” By letter dated May 1, 1989, Governor O’Neill responded that he had requested that the State’s Acting Attorney General, Clarine Nardi Riddle, review the IGRA and determine the State’s obligations thereunder. By letter" }, { "docid": "22720902", "title": "", "text": "to enforce § 2710(d)(3) against a state official. y — t Congress passed the Indian Gaming Regulatory Act m 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. See 25 U. S. C. §2702. The Act divides gaming on Indian lands into three classes — I, II, and III — and provides a different regulatory scheme for each class. Class III gaming — the type with which we are here concerned — is defined as “all forms of gaming that are not class I gaming or class II gaming,” §2703(8), and includes such things as slot machines, casino games, banking card games, dog racing, and lotteries. It is the most heavily regulated of the three classes. The Act provides that class III gaming is lawful only where it is: (1) authorized by an ordinance or resolution that (a) is adopted by the governing body of the Indian tribe, (b) satisfies certain statutorily prescribed requirements, and (c) is approved by the National Indian Gaming Commission; (2) located in a State that permits such gaming for any purpose by any person, organization, or entity; and (3) “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect.” § 2710(d)(1). The “paragraph (3)” to which the last prerequisite of § 2710(d)(1) refers is § 2710(d)(3), which describes the permissible scope of a Tribal-State compact, see § 2710(d)(3)(C), and provides that the compact is effective “only when notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Register,” § 2710(d)(3)(B). More significant for our purposes, however, is that § 2710(d)(3) describes the process by which a State and an Indian tribe begin negotiations toward a Tribal-State compact: “(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into" }, { "docid": "19337376", "title": "", "text": "a mediator who will then select the more appropriate plan. Id. § 2710(d)(7)(B)(iv). In determining whether a state negotiated in good faith, IGRA permits courts to “take into account the public interest, public safety, criminality, financial integrity, arid adverse economic impacts on existing gaming activities.” Id. § 2710(d)(7)(B)(ni)(II). Finally, IGRA explicitly prohibits gaming on lands taken into trust for the benefit of a tribe after October 17, 1988. Id. § 2719(a). This restriction does not apply, however, if the Secretary, having consulted with tribal and state and local officials, and having secured the agreement of the Governor, determines that gaming on the newly acquired lands would benefit the tribe and would not be detrimental to the surrounding community. Id. § 2719(b). B. California Gaming Following the enactment of IGRA, the State of California and various Indian tribes in California attempted to conclude Tribal-State compacts. However, the State and the tribes disagreed about the forms of gaming that would be permitted and the content of the compacts. See,.e.g., Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir.1994); Hotel Employees and Rest. Employees Int’l Union v. Davis, 21 Cal.4th 585, 88 Cal.Rptr.2d 56, 981 P.2d 990 (1999). These disagreements were ultimately set-tied, and on September-10, 1999, Governor Davis approved fifty-seven class III gaming compacts on behalf of the - State of California. (Complaint at ¶ 39). The compacts, which are effective until December 31, 2020, are identical in most respects. The compacts point to the preferred position accorded to the tribes, noting that the compacts “create a unique opportunity for [each] Tribe to operate its Gaming Facility in an economic environment free of competition from the Class III gaming ... on non-Indian lands in California.” (Tribal-State Compact Between the State of California and the Augustine Band of Mission Indians (“Compact”), at 2, § 11.2.1(a), Exh. 1 to St. Defs.’ App. of Authorities). The compacts permit each signatory tribe to operate “gaming devices” or slot machines, banking or percentage card games, and any devices or games that the California State Lottery is authorized to offer. Id. at § 4.1." }, { "docid": "16096013", "title": "", "text": "also divides gaming into three classes. Class I gaming includes social games for prizes of minimal value and traditional forms of Indian gaming engaged in as part of, or in connection with, tribal ceremonies or celebrations. 25 U.S.C. § 2703(6). Class II gaming includes bingo and certain card games, but not banking card games or electronic facsimiles of any games of chance or slot machines of any kind. 25 U.S.C. § 2703(7)(A), (B). Class III gaming is defined as all forms of gaming that are not within the definitions of Classes I and II, including casino games, banking card games, and lotteries. 25 U.S.C. § 2703(8); 25 C.F.R. § 502.4. With respect to Class III gaming, in addition to the requirements that the gaming be engaged in only by an “Indian tribe” on “Indian lands,” IGRA provides the Class III gaming is only lawful where it is: (1) authorized by an ordinance or resolution adopted by the government body of the Indian Tribe and approved by the Chairman of the National Indian Gaming Commission; (2) located in a state that permits such gaming for any purpose by any person, organization, or entity; and (3) conducted in conformance with a tribal-state compact entered into by the Indian Tribe and the state that is in effect. 25 U.S.C. § 2710(d)(1). Pursuant to this framework, the state must negotiate in good faith with an Indian tribe to enter into a tribal-state compact governing the conduct of gaming activities when such negotiation is requested of the state by an Indian tribe with jurisdiction over Indian lands. 25 U.S.C. § 2710(d)(3). The Secretary of the Interior (“the Secretary”) must then approve the tribal-state compact before it takes effect. 25 U.S.C. §§ 2710(d)(3)(B), (d)(8). “Since New York allows some forms of class III gaming — for charitable purposes — such gaming may lawfully be conducted on Indian lands provided it is authorized by a tribal ordinance and is carried out pursuant to a tribal-state compact.” Dalton v. Pataki, 5 N.Y.3d 243, 259, 802 N.Y.S.2d 72, 835 N.E.2d 1180 (N.Y.2005). In short, under IGRA, class III gaming" }, { "docid": "3394109", "title": "", "text": "(IGRA). Enacted in 1988, IGRA created a regulatory framework for tribal gaming intended to balance state, federal, and tribal interests. See 25 U.S.C. §§ 2701, 2702. The Act divides gaming into three classes, only one of which — Class III, which includes most casino games such as blackjack and roulette as well as slot machines — is at issue in this case. See id. § 2703(8). Before commencing Class III gaming, a tribe must satisfy three conditions. First, the gaming must be authorized by a tribal ordinance or resolution that has been approved by the National Indian Gaming Commission, a regulatory body created by IGRA with rulemaking and enforcement authority. Id. § 2710(d)(1)(A), (2)(C). Second, the Indian lands where the gaming will take place must be located within a state that permits gaming “for any purpose by any person, organization, or entity.” Id. § 2710(d)(1)(B). And third, the gaming must be conducted in conformance with a tribal-state compact that has been approved by the Secretary. Id. § 2710(d)(1)(C). In addition, and critical to this case, IGRA provides for gaming only on “Indian lands.” Id. § 2710(d)(1) (“Class III gaming activities shall be lawful on Indian Lands.... ” (emphasis added)). Once a tribe has submitted a tribal-state compact for approval, the Secretary has three choices. He may approve the compact, id. § 2710(d)(8)(A); he may disapprove the compact, but only if it violates IGRA or other federal law or trust obligations, id. § 2710(d)(8)(B); or he may choose to do nothing, in which case the compact is deemed approved after forty-five days “but only to the extent the compact is consistent with the provisions” of IGRA, id. § 2710(d)(8)(C). The compact takes effect once the Secretary publishes notice of approval in the Federal Register. Id. § 2710(d)(8)(D), (3)(B). In 1999, the Me-Wuk Tribe completed an initial round of negotiations with the State of California, and shortly thereafter the Secretary approved the resulting compact. In 2004, the Tribe began a second round of negotiations to amend the compact in order to provide for “expanded gaming at a prospective casino.” Appellees’ Br. 15." }, { "docid": "8863822", "title": "", "text": "25 U.S.C. § 2703(6), is left entirely “within the exclusive jurisdiction of the Indian tribes” and remains unregulated by state or federal law. Id. § 2710(a)(1). Second, “class II gaming,” which encompasses bingo, lotteries and card games in which gamblers play against one another rather than against the house (poker, for example), see id. § 2703(7), is subject to a more extensive set of conditions and regulations. It is permitted only on tribal lands in states that do not entirely prohibit such gaming and only where the tribal resolution authorizing the operation is approved by the Chairman of the Commission. Id. § 2710(b)(l)(A)-(B). The Chairman’s approval is contingent on the resolution’s satisfaction of several conditions, including that it vests the sole proprietary interest in the operation in the tribe, that it sets up auditing systems and that it prohibits the tribe from spending profits other than for certain, enumerated purposes. Id. § 2710(b)(2). Finally, “class III gaming,” which includes all other types of gambling, id. § 2703(8), regulates such activities as casino games played against the house (e.g., blackjack and roulette), slot machines and pari-mutuel betting (e.g., horse racing). Class III gaming is permitted only if it is “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State” in which the tribal lands are located. Id. § 2710(d)(1)(C); see also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 48-50, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (describing the tribal-state compact scheme). The Act vests in the Commission the power to promulgate regulations. 25 U.S.C. § 2706(b)(10). In addition, it provides the Chairman of the Commission with the authority to review and approve management contracts entered into by an Indian tribe “for the operation and management,” id. § 2711(a)(1), of a class II or class III gaming facility. See id. §S 2710(d)(9), 2711(a)(1). Under Commission regulations, unapproved management eon tracts “are void.” 25 C.F.R. § 533.7. The Chairman’s review of management contracts is subject to standards set out in the Act and in regulations promulgated by the Commission. Those standards include background checks of" }, { "docid": "19337450", "title": "", "text": "any person, organization, or entity.” 25 U.S.C. § 2710(d)(1)(B). As discussed in the next section, the “any purpose” “any person” language suggests that this prerequisite is easily met. See infra pp. 1122-23. The Act does not define “permits”; neither placing restrictions on the word nor otherwise limiting its meaning. Section 2710(d)(1)(B) does not say “permits such gaming independently of IGRA for any purpose by any person, organization, or entity.” It does not say “permits such gaming for any purpose by any person, organization, or entity other than Indian tribes.” And it is precisely because Congress did not write the Act in either of these ways that California, subject to the Secretary’s approval, may “permit” class III gaming within the structure of IGRA, even though the permission is not entirely independent of IGRA, and even though IGRA prevents states from unilaterally legalizing tribal gaming. In short, the statute is written broadly, and it is consistent with the co-operative federalism at the heart of IGRA to allow the state to “permit” tribal gaming under the Act by exempting the tribes from state prohibitions on banked gaming and slot machines. Plaintiffs argue that this construction negates the state permission requirement of § 2710(d)(1)(B) because a state that satisfies the compact requirement, § 2710(d)(1)(C), would also be one that “permits such gaming.” See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985) (noting “ ‘the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative’ ”) (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979)). Two courts have held that a compact entered into under § 2710(d)(1)(C), does not satisfy the state permission requirement of § 2710(d)(1)(B). Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179, 181 (10th Cir.1993); American Greyhound Racing, 146 F.Supp.2d 1012, 1067-69 (D.Ariz.2001). However, unlike in Green and American Greyhound Racing, California does not rely on the compacts themselves for the purpose of permitting class III gaming. Separate from the compacts, by" }, { "docid": "13468952", "title": "", "text": "TACHA, Circuit Judge. Citizen Band Potawatomi Indian Tribe of Oklahoma (“Tribe”) appeals a district court order granting summary judgment to John E. Green, the United States Attorney for the Western District of Oklahoma (“U.S. Attorney”). The court held that the importation of video lottery terminals (“VLTs”) onto the Tribe’s land would violate the Johnson Act, 15 U.S.C. §§ 1171-1178. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. I. Background Under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, Indian gaming activities are divided into three classes, each of which is subject to differing degrees of tribal, state, and federal jurisdiction and regulation. See id. §§ 2703, 2710. See generally United States v. Cook, 922 F.2d 1026, 1033 (2d Cir.1991) (summarizing the regulatory scheme). The IGRA defines class I gaming as “social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations.” Id. § 2703(6). Class II gaming includes bingo and certain card games. Id. § 2703(7)(A). Class II gaming does not include banking card games, electronic games of chance, or slot machines. Id. § 2703(7)(B). Class III gaming is “all forms of gaming that are not class I gaming or class II gaming.” Id. § 2703(8). Indian tribes and states may negotiate compacts that authorize class III gaming on Indian land located within the state’s boundaries. Id. § 2710(d)(3)(A). Pursuant to the IGRA, the State of Oklahoma and the Tribe entered into the Potawa-tomi/Oklahoma Gaming Compact of 1992 (“Compact”), which authorizes class III gaming on the Tribe’s land. The Compact specifically authorizes the use of VLTs to conduct lotteries, subject, however, to the following condition: [T]he Potawatomi shall not import VLTs to conduct a lottery under this Compact until either: (1) The United States Attorney for the Western District of Oklahoma issues a letter assuring that VLTs employed pursuant to this compact do not violate the Johnson Act; or (2) A federal court of competent jurisdiction shall have declared-that importation of VLTs under this Compact do[es] not" }, { "docid": "19337448", "title": "", "text": "“Permit” Class III Gaming? Proposition 1A authorizes the Governor to enter into class III gaming compacts with Indian tribes “in accordance with federal law.” Plaintiffs argue that California may not rely on Proposition 1A to “permit” tribes to offer class III gaming because states only acquire jurisdiction over gambling on Indian lands after executing a valid compact under IGRA. (Pis.’ Motion at 23-24; Pis.’ Reply at 9). According to plaintiffs, this logical conundrum deprives Proposition 1A of “permission” status under § 2710(d)(1)(B) of IGRA. Although not without force, for several reasons, the court is not persuaded by this argument. To begin with, Proposition 1A unambiguously authorizes the Governor and the State Legislature to conclude class III gaming compacts with Indian tribes subject to the terms of federal law, notwithstanding contrary provisions of state law which generally prohibit such gaming. Proposition 1A explicitly excepts Indian gaming from provisions of state law that otherwise prohibits slot machines, lottery-games, and banking card games. And it authorizes compacts and gaming under these compacts against the backdrop of, or by incorporating, federal law, specifically, IGRA. In this sense, Proposition 1A per mits tribal gaming under IGRA. Of course, outside of the context of IGRA, California cannot unilaterally legalize tribal gaming. The issue here, however, is whether it may, for purposes of § 2710(d)(1), “permit” such gaming within the general context of IGRA. This is a question of statutory construction. A state’s affirmative permission to tribes to engage in gaming within the structure of IGRA may not have been on the forefront of what Congress had in mind in enacting IGRA and § 2710(d)(1)(B). But it is a kind of permission that is not foreclosed by the language of IGRA, and fits well within its plain language. In enacting IGRA, Congress employed capacious language to clarify the situations in which it would be lawful for Indian tribes to offer class III gaming. Section 2710(d)(1)(B) reflects this approach. It states that class III gaming activities are lawful on Indian lands only if the activities are “located in a State that permits such gaming for any purpose by" }, { "docid": "16906048", "title": "", "text": "on or before May 1, 1988; and (3) class III gaming includes casino-type gambling, parimutuel horse and dog racing, lotteries, and all other forms of gaming that are not class I or class II gaming. 25 U.S.C. § 2703(6)-(8). Class I gaming on Indian lands is within the exclusive jurisdiction of the tribes and is not subject to the IGRA. Id. § 2710(a)(1). Class II gaming on Indian lands is within the jurisdiction of the tribes, but is subject to the provisions of the IGRA, including oversight by the National Indian Gaming Commission within the Department of the Interior. Id. § 2710(a)(2), (b)(1)(A), (B). Class III gaming activities are lawful on Indian lands only if authorized by a tribal ordinance or resolution, located in a state that permits such gaming for any purpose by any person, organization, or entity, and conducted in conformance with a tribal-state compact entered into by the tribe and state. Id. § 2710(d)(1)(A)-(C). The IGRA provides a “framework” for negotiation of tribal-state gaming compacts — the tribe requests the state to enter into negotiations; upon receiving such a request, the state “shall” negotiate with the tribe “in good faith” to enter such a compact. Id. § 2710(d)(3)(A). Any such compact takes effect only after approval by the Secretary of the Department of the Interior. Id. § 2710(d)(4). Tribal-state compacts can include provisions regarding the application of criminal and civil laws and regulations, allocation of criminal and civil jurisdiction between the tribe and state, taxation by the tribe, remedies for breach of contract, standards for the operation and maintenance of gaming facilities including licensing, and any other subjects directly related to the operation of gaming activities. Id. § 2710(d)(3)(C). The IGRA provides the United States district courts with jurisdiction over “any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact ... or to conduct such negotiations in good faith.” Id. § 2710(d)(7)(A)(i). Upon the introduction of evidence by the tribe that negotiations began more" }, { "docid": "16906047", "title": "", "text": "the state negotiate a tribal-state compact to allow the tribe to operate gaming facilities on the reservation under the IGRA. The IGRA was enacted after a decision by the Supreme Court in 1987 which held that California could not enforce state and local gaming laws against the Indian tribes because California law only regulated and did not prohibit gaming. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-22, 107 S.Ct. 1083, 1094-95, 94 L.Ed.2d 244 (1987). This ease established that in states that permit gambling Indian tribes have the authority to license and operate gaming on Indian lands free from state regulation. Id. This opened the door to extensive gambling on Indian lands. In 1988, Congress responded to the decision by enacting the IGRA. The IGRA divides gaming into three classes: (1) class I gaming includes social gaming for minimal prizes and traditional Indian gaming conducted at ceremonies or celebrations; (2) class II gaming includes bingo, lotto, pull-tabs, punch boards, tip jars, and non-banking card games, as well as banking card games operated on or before May 1, 1988; and (3) class III gaming includes casino-type gambling, parimutuel horse and dog racing, lotteries, and all other forms of gaming that are not class I or class II gaming. 25 U.S.C. § 2703(6)-(8). Class I gaming on Indian lands is within the exclusive jurisdiction of the tribes and is not subject to the IGRA. Id. § 2710(a)(1). Class II gaming on Indian lands is within the jurisdiction of the tribes, but is subject to the provisions of the IGRA, including oversight by the National Indian Gaming Commission within the Department of the Interior. Id. § 2710(a)(2), (b)(1)(A), (B). Class III gaming activities are lawful on Indian lands only if authorized by a tribal ordinance or resolution, located in a state that permits such gaming for any purpose by any person, organization, or entity, and conducted in conformance with a tribal-state compact entered into by the tribe and state. Id. § 2710(d)(1)(A)-(C). The IGRA provides a “framework” for negotiation of tribal-state gaming compacts — the tribe requests the state to" }, { "docid": "6432738", "title": "", "text": "illegal under Nebraska law. See Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 279 (8th Cir.1993) (“The ‘such gaming’ language of 25 U.S.C. § 2710(d)(1)(B) does not require the state to negotiate with respect to forms of gaming it does not presently permit.”); see also Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179, 181 (10th Cir.1993) (“Congress must have meant that gambling devices be legal [within state law] absent the Tribal-State compact; otherwise it would not have been necessary to require both that gambling devices be legal, 25 U.S.C. § 2710(d)(6)(A), and that the compact be ‘in effect,’ id. § 2710(d)(6)(B).”). As we already have determined, the class III gambling activities in which the Tribe is engaged are illegal under Nebraska law, ruling out any duty on the part of the State to negotiate a compact with the Tribe for such gambling. VI. The decision of the District Court is reversed and the case remanded for entry of an order enjoining the Tribe’s operation of class III gaming devices and enforcing the Chairman’s closure order. . At all times relevant to this litigation, the IGRA defined class I gaming as \"social games ... for prizes of minimal value or traditional forms of ... gaming” in connection with tribal ceremonies, 25 U.S.C. § 2703(6); see also 25 C.F.R. § 502.2 (1997), class II gaming as \"the game of chance commonly known as bingo ... including ... pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo” and certain card games, 25 U.S.C. § 2703(7)(A); see also 25 C.F.R. § 502.3 (1997), and class III gaming as \"all forms of gaming that are not class I gaming or class II gaming,\" 25 U.S.C. § 2703(8) (including “slot machines ... and electromechanical facsimiles of any game of chance”); 25 C.F.R. § 502.4 (1997). . On appeal, we affirmed the District Court’s dismissal of the Tribe’s action against the State. See Santee Sioux Tribe v. Nebraska, 121 F.3d 427, 432 (8th Cir.1997). . We note that the United States Attorney appeared before the District Court and" }, { "docid": "6432737", "title": "", "text": "by the United States under the provisions of the IGRA, this activity is likewise subject to injunctive relief pursuant to applicable Nebraska law. The Tribe’s ongoing gambling activity constitutes a continuing and flagrant violation of law that the District Court should have enjoined pursuant to Nebraska law. Because injunctive relief is available to halt illegal gambling activity under Nebraska State law, see Strawberries, 473 N.W.2d at 436-37, this relief has been made available under federal law by virtue of 25 U.S.C. § 1166, and the District Court erred in refusing to grant the government’s request for an order enjoining the Tribe’s gaming activities. Y. The Tribe argues that because of the Supreme Court’s determination in Seminole Tribe that Congress was not empowered to authorize lawsuits by Indian tribes against states that fail to negotiate in good faith for a tribal-state compact, all provisions of the IGRA related to compacting are unconstitutional. We decline to address this argument given our conclusion that, under the IGRA, the State is not required to negotiate for gambling that is illegal under Nebraska law. See Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 279 (8th Cir.1993) (“The ‘such gaming’ language of 25 U.S.C. § 2710(d)(1)(B) does not require the state to negotiate with respect to forms of gaming it does not presently permit.”); see also Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179, 181 (10th Cir.1993) (“Congress must have meant that gambling devices be legal [within state law] absent the Tribal-State compact; otherwise it would not have been necessary to require both that gambling devices be legal, 25 U.S.C. § 2710(d)(6)(A), and that the compact be ‘in effect,’ id. § 2710(d)(6)(B).”). As we already have determined, the class III gambling activities in which the Tribe is engaged are illegal under Nebraska law, ruling out any duty on the part of the State to negotiate a compact with the Tribe for such gambling. VI. The decision of the District Court is reversed and the case remanded for entry of an order enjoining the Tribe’s operation of class III gaming devices and enforcing" }, { "docid": "21443400", "title": "", "text": "Class II gaming does not include any “banking card games, including baccarat, ehemin de fer or blackjack” or any “electronic or electromechanical facsimiles of any game of chance or slot machines of any kind.” 25 U.S.C. § 2703(7)(B). Class II gaming is subject only to tribal regulation and federal oversight by the National Indian Gaming Commission. See 25 U.S.C. § 2710(a), (b) & (c); 25 U.S.C. § 2706(b); Wisconsin Winnebago Nation v. Thompson, 22 F.3d 719, 721 & n. 2 (7th Cir.1994). Any form of gaming not described as part of Class I or Class II is Class III gaming. 25 U.S.C. § 2703(8). Class III gaming has been referred to as “high-stakes casino-style” gaming, Pueblo, 104 F.3d at 1549, and “includes such things as slot machines, casino games, banking card games, dog racing, and lotteries.” Seminole Tribe, 517 U.S. at 45-48, 116 S.Ct. at 1119. Class III gaming is subject to, inter alia, 25 U.S.C. § 2710(d)(1), which states: (d) Class III gaming activities; authorization; revocation; Tribal-State compact (1) Class III gaming activities shall be lawful on Indian lands only i/such activities are— (A)authorized by an ordinance or regulation that— (i) is adopted by the governing body of the Indian Tribe having jurisdiction over such lands, (ii) meets the requirements of subsec- . tion (b) of this section, and (iii) is approved by the Chairman, (B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and (C) conducted in conformance with a Tribal-State compact entered into by the Indian Tribe and the State under paragraph (3) that is in effect. 25 U.S.C. § 2710(d)(1) (emphasis added). The IGRA provides that tribes are entitled to engage in all forms of Glass III gaming that a state permits for other citizens and requires the states to negotiate in good faith toward the execution of tribal-state compacts. 25 U.S.C. §§ 2710(d)(1)(B) & 2710(d)(3)(A). At issue in this case is whether another IGRA provision, 25 U.S.C. § 2719, is also applicable to Class III gaming that is the subject of a compact. Section 2719(a) generally" }, { "docid": "19337451", "title": "", "text": "exempting the tribes from state prohibitions on banked gaming and slot machines. Plaintiffs argue that this construction negates the state permission requirement of § 2710(d)(1)(B) because a state that satisfies the compact requirement, § 2710(d)(1)(C), would also be one that “permits such gaming.” See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985) (noting “ ‘the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative’ ”) (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979)). Two courts have held that a compact entered into under § 2710(d)(1)(C), does not satisfy the state permission requirement of § 2710(d)(1)(B). Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179, 181 (10th Cir.1993); American Greyhound Racing, 146 F.Supp.2d 1012, 1067-69 (D.Ariz.2001). However, unlike in Green and American Greyhound Racing, California does not rely on the compacts themselves for the purpose of permitting class III gaming. Separate from the compacts, by constitutional amendment, California specifically exempted Indian tribes from the State’s general gambling prohibitions, and granted them permission. Although the vehicle for California’s exemption, Proposition 1A, integrates and depends on the successful conclusion of gaming compacts, Proposition 1A is still distinct from the compacts. For all of these reasons, and in deference to the Secretary’s interpretation, see infra pp. 1126-27, the court finds that by Proposition 1A, California “permits” class III gaming as required by IGRA. B. Any Person, Organization, or Entity Plaintiffs further contend that because California only permits Indian tribes to offer class III gaming activities, it is not a state that “permits such gaming for any purpose by any person, organization, or entity.” (Pis.’ Motion at 18). 25 U.S.C. § 2710(d)(1)(B). According to the plaintiffs’ interpretation of § 2710(d)(1)(B), a state cannot satisfy the “any person, organization, or entity” requirement unless the state “permits such gaming for non-Indians.” (Pis.’ Motion at 22). Plaintiffs interpret “any” as “every,” as opposed to “any one.” This argument fails for several reasons. To begin with, as already" }, { "docid": "19337447", "title": "", "text": "any person, organization, or entity.” The issue here is whether, for purposes of IGRA, a state constitutional amendment may “permit” Indian tribes to engage in otherwise prohibited forms of class III gaming, notwithstanding exclusive federal jurisdiction over Indian gaming; and, if so, whether a resulting class III gaming monopoly by tribes with compacts comports with IGRA’s “any person, organization, or entity” requirement? Employing the traditional tools of statutory construction — the statute’s plain language governs unless it is ambiguous, legislative history should only be consulted if the plain language is ambiguous or renders a tortured reading of the statute, and statutes benefitting Indian tribes are construed liberally in their favor — and in deference to the Secretary’s interpretation, the court finds that under Proposition 1A, California lawfully permitted tribes with compacts to offer class III gaming, and that the compacts do not violate IGRA’s “any person, organization, or entity” provision. Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th Cir.1994) (applying traditional canons of statutory interpretation to IGRA). A. Does California “Permit” Class III Gaming? Proposition 1A authorizes the Governor to enter into class III gaming compacts with Indian tribes “in accordance with federal law.” Plaintiffs argue that California may not rely on Proposition 1A to “permit” tribes to offer class III gaming because states only acquire jurisdiction over gambling on Indian lands after executing a valid compact under IGRA. (Pis.’ Motion at 23-24; Pis.’ Reply at 9). According to plaintiffs, this logical conundrum deprives Proposition 1A of “permission” status under § 2710(d)(1)(B) of IGRA. Although not without force, for several reasons, the court is not persuaded by this argument. To begin with, Proposition 1A unambiguously authorizes the Governor and the State Legislature to conclude class III gaming compacts with Indian tribes subject to the terms of federal law, notwithstanding contrary provisions of state law which generally prohibit such gaming. Proposition 1A explicitly excepts Indian gaming from provisions of state law that otherwise prohibits slot machines, lottery-games, and banking card games. And it authorizes compacts and gaming under these compacts against the backdrop of, or by" } ]

[ { "docid": "23340465", "title": "", "text": "Motorways, Inc., 625 F.2d 1344, 1356 (8th Cir.1980); Iron Workers, supra at 1266. To hold that the district court abused its discretion, we must have a definite conviction that the court, upon weighing relevant factors, clearly erred in its judgment. Hummell, supra [citing Pue v. Sillas, 632 F.2d 74, 78 (9th Cir.1980)]. However, the district court issued only a minute order without discussion. To effectively review its decision under the above-mentioned standard, we must be aware of the reasons why the district court decided as it did. See Hummell, supra; Iron Workers, supra. We must, therefore, remand to the district court with instruction that the court state the reasons for denying the appellants’ motion for attorney’s fees. To effectively exercise its discretion under section 1132(g)(1), the district court should have guidelines to apply. Apparent ly, there has been some dispute regarding the intention of a portion of our holding in Eaves v. Penn, 587 F.2d 453 (10th Cir.1978). The appellants contend that the five-prong criteria we elicited in Eaves was not established as general criteria to be used in determining whether attorney’s fees are awardable, but only as criteria to use in determining whether the fees to be awarded are done so against the Plan fund or against the offending party personally. See Brief for Appellants at 11. Gordon essentially agrees with the appellants. He urges, however, that the Eaves criteria are applicable to any case, such as this, where an attempt is made to award fees against a party personally. See Brief for Appellee at 11-12. The Eaves criteria is an effective means of providing the guidance needed by district courts to exercise their discretion under section 1132(g)(1). Thus, we hold that when determining whether to award attorney’s fees under section 1132(g)(1), the district court should consider these factors among others: (1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to personally satisfy an award of attorney’s fees; (3) whether an award of attorney’s fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the" } ]

[ { "docid": "11098560", "title": "", "text": "the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties’ positions. McGee v. Equicor-Equitable HCA Corp., 953 F.2d 1192, 1209 n. 17 (10th Cir.1992) (quoting Gordon v. United States Steel Corp., 724 F.2d 106, 109 (10th Cir.1983)); see also Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983) (criteria testing reasonableness of § 1988 attorneys’ fee awards). The district court, in its ruling, stated that “[t]he Court has considered the factors applicable when determining an award of attorneys’ fees under ERISA ... and finds the plaintiffs request unreasonable. The request includes charges for duplicative work, charges for research on issues on which plaintiff did not prevail, and hourly rates that appear high. The Court adopts defendant’s suggestion of $14,295.00 as a reasonable award of attorneys’ fees.” Bartlett v. G.E. Operations Support, Inc., Life Insurance Plan, No. 92 Z 481 (D.Colo. June 10, 1993) (Order, inter alia, on Rule 59 motion and petition for attorneys’ fees). Absent more particular findings of the district court indicating its basis for rejecting the plaintiffs request and adopting the defendant’s suggestion, this court cannot determine whether the district court abused its discretion in setting the amount of fees awarded. We therefore find it necessary to remand the case back to the district court for more detailed findings regarding the award of attorneys’ fees. IV. For the reasons stated, we affirm the district court’s findings that Mr. Bartlett was a regular, full-time employee at the time of his death and that his beneficiary, Maxine Bartlett is entitled to the increased- insurance proceeds. Because we find that the district court did not explain its ruling on the petition for attorneys’ fees adequately for our review, the judgment on attorneys’ fees is reversed and remanded to the district court for more particular findings pursuant to 29 U.S.C. § 1132(g). Affirmed in part, reversed in part, and remanded. . As will be discussed infra, the summary plan description was distributed at the end of March, 1991, over two" }, { "docid": "22246432", "title": "", "text": "motion addressed the merits of her claims (indeed, as a result of the reconsideration she prevailed on her claim for the return of premiums). In this case, the request for attorney’s fees, denied in the original Judgment, was presented as another aspect of the postjudgment motion and as part and parcel of it. The district court ruled on the motion in its entirety in its postjudgment order entered on January 13, 1999. Accordingly, the parties’ time to appeal from the judgment began at that time. Jones’s notice of appeal, filed 27 days later on February 9, 1999, was therefore timely filed. B. The Merits Jones principally pursues her contentions that she should be awarded attorney’s fees and a higher rate of prejudgment interest in connection with her recovery of disability benefits. She contends that such relief is necessary to make her whole and that the district court could not properly deny those awards without an explanation. Although we affirm other aspects of the Judgment, see Part II.B.3. below, we remand for findings on these issues in order to permit meaningful appellate review. 1. Attorney’s Fees In an action by a plan beneficiary to enforce a right under ERISA, the district court “in its discretion,” except in circumstances not applicable here, “may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1); see Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2d Cir.1995). In determining whether to make such an award, the court is ordinarily to consider “five factors: (1) the degree of the offending party’s culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney’s fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties’ positions, and (5) whether the action conferred a common benefit on a group of pension plan participants.” Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir.1987), cert. denied, 496 U.S. 905, 110 S.Ct. 2587, 110 L.Ed.2d 268 (1990). We review a district" }, { "docid": "22803411", "title": "", "text": "906 F.2d 1468, 1474 (10th Cir.1990) (party asserting estoppel must reasonably rely on inconsistent conduct) (emphasis added). Moreover, the burden is on the party asserting the estoppel to show all the elements of the claim. Monts, 906 F.2d at 1474. Apart from the allegations raised in defendants’ brief,- there is nothing in the record to show they detrimentally relied on any alleged inconsistencies in Ms. Moothart’s position. They conducted extensive discovery, and were allowed to depose Ms. Moot-hart for an additional two hours as a result of their stated confusion over the propriety of imposing a penalty. The district court did riot err in failing to apply estoppel. The defendants also maintain it was error to award attorneys’ fees. They contend thé district court did not consider the appropriate factors in assessing the fees. In addition, defendants argue the court erred when it subtracted only ten percent of the requested fees to reflect the time spent pursuing claims against the individual defendants. The decision whether to award fees is discretionary. 29 U.S.C. § 1132(g). Thus, “[t]o hold that the district court abused its discretion, we must have a definite conviction that the court, upon weighing relevant factors, clearly erred in its judgment.” Gordon v. U.S. Steel Corp., 724 F.2d 106, 108 (10th Cir.1983). As defendants point out, several factors are relevant in determining whether fees are appropriate under ERISA. These include, but are not limited to 1) the degree of culpability or bad faith, 2) the ability of the party to satisfy the award, 3) whether an award of fees would deter others from acting under similar circumstances, 4) whether the party seeking fees sought to benefit all participants of the plan or resolved a significant legal question, and 5) the relative merit of the parties’ positions. Id. at 109; see also Downie v. Independent Drivers Ass’n Pension Plan, 945 F.2d 1171, 1172-73 (10th Cir.1991). This is neither an exhaustive nor exclusive list. See Downie, 945 F.2d at 1172 (“the district court should consider these factors among others”) (quoting Gordon, 724 F.2d at 109). Here, for example, the district court" }, { "docid": "8732160", "title": "", "text": "the payroll as of February 28, 1991 or on a leave of absence with guaranteed reemployment.” (Emphasis in original.) Third, as to the company’s extension of 5 + 5 benefits to director-level employees who had left the payroll under the Directors’ Program, the court held this decision to be a matter of plan design beyond the scope of the EBC’s fiduciary responsibilities and therefore unreviewable, citing Fletcher v. Kroger Co., 942 F.2d 1137, 1139-40 (7th Cir.1991). Fourth, the court rejected as unsupported by the evidence the Sabell plaintiffs’ claim that the 5 + 5 amendment was not properly approved by the US WEST Board of Directors. The court noted that assuming ar-guendo no proper approval had been given, the entire 5 + 5 amendment would be invalid and no one — including plaintiffs — would be entitled to benefits thereunder. Fifth, the court denied the Sandquist plaintiffs’ claim for civil penalties from defendant Shea for his alleged failure to make a timely response to their written requests for documents. The court held that Mr. Shea did not appear to be a plan “administrator” subject to civil penalties under 29 U.S.C. § 1132(c); that no evidence indicated either bad faith by Shea or prejudice to the Sand-quists; and that in any event Shea was not personally responsible for any delay in providing the relevant materials to the Sand-quists. Finally, exercising its discretion under 29 U.S.C. § 1132(g)(1), the court denied plaintiffs’ claims for attorneys’ fees and costs. Due to its denial of plaintiffs’ summary judgment motions and the factors outlined in Downie v. Independent Drivers Ass’n Pension Plan, 945 F.2d 1171, 1172-73 (10th Cir.1991), the court concluded that each party should bear its own fees and costs. That ruling is not challenged on appeal. Ill In reviewing a grant of summary judgment, we apply a de novo standard of review to the district court’s conclusions of law. Awbrey v. Pennzoil Co., 961 F.2d 928, 930 (10th Cir.1992). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there" }, { "docid": "16311133", "title": "", "text": "hold that Blue Cross was arbi trary and capricious in denying coverage for the high-dose chemotherapy, portion of Pitman’s procedure. This is particularly true because “Blue Cross’ discretionary interpretation to the contrary is not entitled to the deference we might otherwise accord,” Doe, 3 F.3d at 89, for the reasons given in Part I above. However, the policy unambiguously excluded the autologous bone marrow transplant, and thus Blue Cross correctly declined to pay the costs associated with that portion of the procedure. We therefore affirm in part and reverse in part. III. Attorney Fees The district court awarded Pitman $64,500 in attorney’s fees under 29 U.S.C. § 1132(g)(1). The statute provides in pertinent part that “[i]n any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). Under this section, “it is within the district court’s sound discretion to determine whether a party is entitled to attorney’s fees as the result of an action brought under ERISA.” Gordon v. United States Steel Corp., 724 F.2d 106, 108 (10th Cir.1983). Although the district court has already addressed this issue once and determined that Pitman was entitled to attorney’s fees, we believe it is necessary to remand the issue to the district court and have it review again the appropriateness of awarding attorney’s fees to Pitman in light of our decision to reverse in part and affirm in part. In remanding we do not mean to imply that an award of attorney’s fees would be an abuse of discretion where a plaintiff only partially prevails on her claim. See Gordon, 724 F.2d at 109 (listing the five factors a district court should consider in determining whether to award attorney’s fees under section 1132(g)(1) and implicitly recognizing that the relative merits alone is not dispositive of the issue). However, because the situation has changed since the district court last addressed the issue, and it is within the district court’s discretion whether to award attorney’s fees, we remand. We therefore AFFIRM" }, { "docid": "8023018", "title": "", "text": "hold that the District Court appropriately exercised its discretion to award Peterson fees and costs incurred while engaged in the administrative proceedings ordered by the District Court. C. Fees and Costs Incurred in this Appeal Peterson requests that this Court award him attorneys’ fees that he incurred in connection with the present appeal. ERISA clearly permits the award of such fees, see Ford v. N.Y. Cent. Teamsters Pension Fund, 642 F.2d 664, 665 (2d Cir.1981), however, as with any award under § 1132(g)(1), such an. award is discretionary. See 29 U.S.C. § 1132(g)(1). Given that Continental, at least in regard to this appeal, acted in good faith by appealing only a small number of discrete issues, and has largely prevailed on those issues, we choose not to reallocate the costs of this appeal. See Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir.1987); Bratcher v. Bray-Doyle Ind. School Dist., 8 F.3d 722, 726 (10th Cir.1993) (denying appellate fees to party who was awarded fees for district court proceedings but who lost on appeal); Misic v. Bldg. Serv. Employees Health & Welfare Trust, 789 F.2d 1374, 1379 (9th Cir.1986) (denying appellate fees because appellants acted in good faith and raised meritorious issues). Therefore, we hold that each party shall bear its own fees and costs in regard to this appeal. CONCLUSION We hold that because the plan administrator had yet to render a determination on the issue of Peterson’s eligibility for permanent benefits, the District Court exceeded its jurisdiction when it rendered a determination as to that issue. We therefore vacate that part of the District Court’s order addressing the issue of permanent benefits and dismiss the claim for lack of jurisdiction. Additionally, we vacate the award to Peterson of attorneys’ fees and costs incurred during the administrative proceedings prior to filing suit in the District Court. We affirm the judgment of the District Court as to its award of fees and costs during all other time periods, but deny Peterson’s request for fees and costs in regard to the instant appeal. We thus remand the" }, { "docid": "16311134", "title": "", "text": "an action brought under ERISA.” Gordon v. United States Steel Corp., 724 F.2d 106, 108 (10th Cir.1983). Although the district court has already addressed this issue once and determined that Pitman was entitled to attorney’s fees, we believe it is necessary to remand the issue to the district court and have it review again the appropriateness of awarding attorney’s fees to Pitman in light of our decision to reverse in part and affirm in part. In remanding we do not mean to imply that an award of attorney’s fees would be an abuse of discretion where a plaintiff only partially prevails on her claim. See Gordon, 724 F.2d at 109 (listing the five factors a district court should consider in determining whether to award attorney’s fees under section 1132(g)(1) and implicitly recognizing that the relative merits alone is not dispositive of the issue). However, because the situation has changed since the district court last addressed the issue, and it is within the district court’s discretion whether to award attorney’s fees, we remand. We therefore AFFIRM in part, REVERSE in part, and REMAND for consideration of attorney’s fees under 29 U.S.C. § 1132(g)(1). . Barbara Johnson testified that when she denied Pitman’s request for benefits she did not have any knowledge of whether the employer sponsoring Pitman’s plan was self-funded or was indemnified by Blue Cross. In addition, she claims that although she thought HDC/ABMT was \"probably ... more than $10,000” she did not know how expensive it would be. . Section 1132(a)(1)(B) states: \"A civil action may be brought-by a participant or beneficiary-to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). .In March 1992, Pitman was able to undergo HDC/ABMT due to the generosity of his friends and neighbors. However, while the appeal in his case was pending, Pitman died. This court granted his wife's application for substitution. . We recognize that this court recently addressed a similar issue" }, { "docid": "16228468", "title": "", "text": "that a remand is necessary for clarification of the district court’s order on reconsideration because that order is unillumi-nating and contradictory to the court’s original memorandum opinion and order. It is true that the two orders come to opposite conclusions. But this simply is the result of the court properly reconsidering its original decision. It also is true that in the order on reconsideration the district court did not expressly retract its original conclusion that the trustees “based their termination of the Plan on an erroneous interpretation of ERISA and the Plan, ... [and thus] termination by the [trustees] was arbitrary and capricious.” App. No. 91-1310 at 66. But the order on reconsideration, albeit brief, is supplemented by the court’s oral ruling at the hearing on the ■motion for reconsideration. Although the court could have addressed expressly its earlier arbitrary and capricious language, after reconsideration the court made its view on the key issue clear: the trustees did not breach their fiduciary duties. Thus, we hold that a remand for clarification is not necessary. IV Next we address plaintiffs’ claim that the district court abused its discretion in denying their request for attorneys’ fees. Plaintiffs sought fees pursuant to 29 U.S.C. § 1132(g)(1). In the original memorandum opinion and order, in which it granted summary judgment for the plaintiffs on their first and second claims for relief, the district court declined to award fees but gave no explanation for its decision. We have held that if a party seeks attorneys’ fees under § 1132(g)(1), and the district court denies the request without explanation, a remand is necessary. See, e.g., Downie v. Independent Drivers Ass’n Pension Plan, 934 F.2d 1168, 1171 (10th Cir.1991); Gordon v. United States Steel Corp., 724 F.2d 106, 108 (10th Cir.1983). Although the statute does not expressly require that a party prevail as a condition to receiving an award of attorneys’ fees, see 29 U.S.C. § 1132(g)(1); cf. 42 U.S.C. § 1988(b) (prevailing party status required), we have remanded cases for denial of fees without explanation only when the party seeking fees had prevailed at least partially," }, { "docid": "1526654", "title": "", "text": "award attorney’s fees in ERISA actions consider five factors: a party’s culpability or bad faith; its ability to satisfy an award of fees; the deterrence value of an award; the number of plan participants affected by the case or the significance of the impact of the legal question involved; and “the relative merits of the parties’ positions.” Gordon, 724 F.2d at 109. We also afford certain weight to prevailing party status, even though we acknowledge that the ERISA attorney’s fees provision is not expressly directed at prevailing parties. See, e.g., Deboard v. Sunshine Mining & Ref. Co., 208 F.3d 1228, 1245 (10th Cir.2000) (reversing and remanding an attorney’s fee award because appellate decision “alter[ed] the relative merits of the parties’ positions”); Morgan v. Indep. Drivers Ass’n Pension Plan, 975 F.2d 1467, 1471 (10th Cir.1992) (“Although the statute does not expressly require that a party prevail as a condition to receiving an award of attorneys’ fees .... we have remanded cases for denial of fees without explanation only when the party seeking fees had prevailed at least partially.” (citations omitted)); Arfsten v. Frontier Airlines, Inc. Ret. Plan for Pilots, 967 F.2d 438, 442 n. 3 (10th Cir.1992) (“Because we reverse the district court’s decision on the merits, plaintiff is not a prevailing party, and his arguments on attorney’s fees are moot.”). In this case, the district court denied Graham’s motion for attorney’s fees, concluding that its determination that Hartford acted arbitrarily and capriciously did not equate to a finding of bad faith under the first Gordon factor. The court found two other Gordon factors similarly were not satisfied here, because (1) Graham pursued benefits for only herself and her action did not involve a significant legal question and (2) the record did not suggest that her claim for benefits was “particularly meritorious.” Ordinarily, we review district courts’ attorney’s fees decisions for abuse of discretion. Gordon, 724 F.2d at 108. At this point in the litigation, however, a decision regarding attorney’s fees is premature. The district court cannot properly apply the five-factor Gordon test, particularly with respect to the merits of the" }, { "docid": "23050706", "title": "", "text": "claims only. The district court declined to exercise supplemental jurisdiction over the remaining state law claims, and dismissed them without prejudice pursuant to 28 U.S.C. § 1367(c), a dismissal contested by defendants. Defendants sought reconsideration of the district court’s dismissal of plaintiffs state law claims on the ground that the court retained jurisdiction, and equitable considerations warranted retention of jurisdiction. Defendants also filed a motion for attorneys fees and a bill of costs. Similarly, plaintiff filed a motion for attorneys’ fees, costs and expenses. The district court denied defendants’ motion for reconsideration. This appeal followed. This ease presents two issues only. First, did the district court err in denying without explanation the bill of costs sought by appellants pursuant to Rule 54(d) of the Federal Rules of Civil Procedure? Second, did the district court err in denying without explanation appellants’ motion for attorneys’ fees brought under 42 U.S.C. § 1988 or Rule 11 of the Federal Rules of Civil Procedure? There is no claim here that the district court abused its discretion in dismissing all state law claims. We conclude that the answer to both questions is “yes,” and thus, remand this case to the district court to award costs and attorneys’ fees in an appropriate amount or to explain its decision to award no costs or fees. STANDARD OF REVIEW We review the factual findings underlying a district court’s determination regarding prevailing party status for clear error. Church of Scientology Flag Serv., Org., Inc. v. City of Clearwater, 2 F.3d 1509, 1512-13 (11th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994). “Whether the facts as found suffice to render the plaintiff a ‘prevailing party’ is a legal question reviewed de novo.” Church of Scientology, 2 F.3d at 1513. Finally, a district court’s determination that a party has prevailed for purposes of awarding attorneys’ fees is reviewed for abuse of discretion. Id. I. Bill of Costs The district court’s order denying attorneys’ fees and costs in this case stated: “[a]f-ter careful consideration Plaintiffs and Defendant’s motions for attorney’s fees, costs and expenses are hereby DENIED.”" }, { "docid": "15900407", "title": "", "text": "that that breach caused harm. C. The Denial of Attorney’s Fees ERISA provides, in pertinent part, that in an action brought under the statute by a plan participant or beneficiary the “court in its discretion may allow a reasonable attorney’s fee ... to either party.” • 29 U.S.C. § 1132(g)(1). In the present action, the district court in its Trial Decision denied an award of fees to Mrs. Leyda; and after granting her motion for reconsideration, the court adhered to that denial in its Fee Decision. Mrs. Leyda contends that there is a presumption in favor of awarding fees to a prevailing plaintiff, that the court misapplied the pertinent test, and that the denial of attorney’s fees was an abuse of discretion. Although our standard is designed to further ERISA’s essential remedial purpose of protecting the beneficiaries of employee benefit plans, we see no abuse of discretion in the district court’s application of the standard here. This Court’s standard for determining whether attorney’s fees should be awarded in an ERISA action is articulated in Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869 (2d Cir.1987) (“Chambless”). The district court must consider (1) the degree of the offending party’s culpability or bad faith, (2) the ability of the offending party to satisfy an award of attorney’s fees, (3) whether an award of fees would deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties’ positions, and (5) whether the action conferred a common benefit on a group of pension plan participants. Id. at 871. We review a district court’s decision to award or deny attorney’s fees for abuse of discretion. See, e.g., Salovaara v. Eckert, 222 F.3d 19, 27, 32 (2d Cir.2000). The district court in the present case quoted the Chambless standard and proceeded to address each factor in turn, finding that only the second factor, Allied-Signal’s ability to pay an award of attorney’s fees, significantly favored an award to Mrs. Leyda. As to the first and fourth factors, the court found that AlliedSignal’s performance did “not reflect a high degree of" }, { "docid": "6205085", "title": "", "text": "does not. present clear error such that we would exercise our discretion to consider the defense. In this case, the defense was raised to the district court in defendants’ Rule 59 motion. Accordingly, we also defer to the district court’s denial of that motion. We review the district court’s ruling under an abuse of discretion standard. See Committee for First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992). Based on our conclusion that this case does not implicate a discretionary exception to the general rule, we conclude that the district court’s denial of defendants’ motion was not an abuse of its discretion. 3. Attorney’s Fees Award. Finally, defendants contend that the district court’s award of attorney’s fees was legal error because the court faded to list specific findings in support of such an award. The decision to award attorney’s fees in this case was within the district court’s discretion. See 29 U.S.C. § 1132(g)(1); Downie v. Independent Drivers Ass’n Pension Plan, 945 F.2d 1171, 1172 (10th Cir.1991). We review for abuse of that discretion, i.e., whether the district court clearly erred in awarding fees. Id. (citing Gordon v. United States Steel Corp., 724 F.2d 106, 108 (10th Cir.1983)). Case precedent required the district court to consider certain factors in determining whether an award of fees was appropriate here. See Downie, 945 F.2d at. 1172-73. The district court’s order lists those factors, expressly states that the factors were considered together with the parties’, arguments, and makes specific rulings as to some of the factors. We conclude there was no clear error in the district court’s award. . The judgment of the United States District Court for the District of Colorado is AFFIRMED in part, REVERSED in part, and REMANDED for an award of damages and fees to plaintiffs consistent with this opinion. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . Webster's Third New International Dictionary (unabridged, 1976)" }, { "docid": "16228469", "title": "", "text": "Next we address plaintiffs’ claim that the district court abused its discretion in denying their request for attorneys’ fees. Plaintiffs sought fees pursuant to 29 U.S.C. § 1132(g)(1). In the original memorandum opinion and order, in which it granted summary judgment for the plaintiffs on their first and second claims for relief, the district court declined to award fees but gave no explanation for its decision. We have held that if a party seeks attorneys’ fees under § 1132(g)(1), and the district court denies the request without explanation, a remand is necessary. See, e.g., Downie v. Independent Drivers Ass’n Pension Plan, 934 F.2d 1168, 1171 (10th Cir.1991); Gordon v. United States Steel Corp., 724 F.2d 106, 108 (10th Cir.1983). Although the statute does not expressly require that a party prevail as a condition to receiving an award of attorneys’ fees, see 29 U.S.C. § 1132(g)(1); cf. 42 U.S.C. § 1988(b) (prevailing party status required), we have remanded cases for denial of fees without explanation only when the party seeking fees had prevailed at least partially, see, e.g., Downie, 934 F.2d at 1169; Gordon, 724 F.2d at 108. As the instant case is presented to us, plaintiffs did not prevail on any of their claims. Their first and second claims were dismissed with prejudice after reconsideration; their third claim was dismissed with prejudice when the court adopted the report of the special master; and their fourth claim was dismissed with prejudice in the court’s original memorandum opinion and order. Therefore, although we adhere to the rule that a district court must enunciate the reasons for a denial of a request for attorneys’ fees, when the party seeking fees did not prevail on any of its claims we decline to remand to require the district court to state that the party did not prevail. V Finally we come to plaintiffs’ objections to the district court's adoption of the special master’s report and recommendations regarding the distribution of the plan’s available assets upon termination. Plaintiffs object to the treatment of severance benefits and the method of allocating assets among participants. As to severance" }, { "docid": "8732161", "title": "", "text": "did not appear to be a plan “administrator” subject to civil penalties under 29 U.S.C. § 1132(c); that no evidence indicated either bad faith by Shea or prejudice to the Sand-quists; and that in any event Shea was not personally responsible for any delay in providing the relevant materials to the Sand-quists. Finally, exercising its discretion under 29 U.S.C. § 1132(g)(1), the court denied plaintiffs’ claims for attorneys’ fees and costs. Due to its denial of plaintiffs’ summary judgment motions and the factors outlined in Downie v. Independent Drivers Ass’n Pension Plan, 945 F.2d 1171, 1172-73 (10th Cir.1991), the court concluded that each party should bear its own fees and costs. That ruling is not challenged on appeal. Ill In reviewing a grant of summary judgment, we apply a de novo standard of review to the district court’s conclusions of law. Awbrey v. Pennzoil Co., 961 F.2d 928, 930 (10th Cir.1992). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lob by, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Because the Plan gave the EBC discretion to make the rulings in question, the district court properly reviewed the rulings under the arbitrary and capricious test. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989). The district court’s holding that the ruling by the EBC was not arbitrary and capricious is a legal conclusion and our review of the court’s ruling, although not the underlying administrative decision, is plenary. Sandoval v. Aetna Life & Casualty Ins. Co., 967 F.2d 377, 380 (10th Cir.1992). The EBC’s actions will not be set aside if based on “a reasonable interpretation of the plan’s terms and ... made in good faith.” Torix v. Ball Corp., 862 F.2d 1428, 1429 (10th Cir.1988). IV A Plaintiffs’" }, { "docid": "22803412", "title": "", "text": "“[t]o hold that the district court abused its discretion, we must have a definite conviction that the court, upon weighing relevant factors, clearly erred in its judgment.” Gordon v. U.S. Steel Corp., 724 F.2d 106, 108 (10th Cir.1983). As defendants point out, several factors are relevant in determining whether fees are appropriate under ERISA. These include, but are not limited to 1) the degree of culpability or bad faith, 2) the ability of the party to satisfy the award, 3) whether an award of fees would deter others from acting under similar circumstances, 4) whether the party seeking fees sought to benefit all participants of the plan or resolved a significant legal question, and 5) the relative merit of the parties’ positions. Id. at 109; see also Downie v. Independent Drivers Ass’n Pension Plan, 945 F.2d 1171, 1172-73 (10th Cir.1991). This is neither an exhaustive nor exclusive list. See Downie, 945 F.2d at 1172 (“the district court should consider these factors among others”) (quoting Gordon, 724 F.2d at 109). Here, for example, the district court placed greater emphasis on its view of the bad faith of the defendants and the merit of their position. In addition, after hearing testimony on the question, the court determined the amount of fees- requested was reasonable, including the time spent and hourly rate. Moreover, the court went further than the plaintiffs expert in deciding to lower the requested fees by ten percent to reflect the unsuccessful litigation pursued against the individual defendants. Because we hold the attorneys’ fees calculation was not “clearly wrong,” we affirm the district court on this issue. II ' This leads us to defendants’ argument that the district court erred when it failed to award attorneys’ fees for their efforts in having the individual claims dismissed. After reviewing the record, including but not limited to the court’s conclusion that although not successful, the claims against the individual defendants were not frivolous, we see no abuse of discretion in not awarding fees. We will remand, however, as it appears the district court erred when it included the individuals in the judgment" }, { "docid": "16962324", "title": "", "text": "the plaintiffs are entitled to tax their costs on appeal. Fed.R.App.P. 39(a). Both the plaintiffs and defendants seek attorney’s fees for this appeal under 29 U.S.C. § 1132(g)(1). We reject the defendants’ fee request because we see no justification, on this record, to displace our common perception that attorney’s fees should not be charged against ERISA plaintiffs. Tingey v. Pixley-Richards West, Inc., 958 F.2d 908, 909 (9th Cir.1992). We also decline to award the plaintiffs their fees for this appeal at this stage of the litigation. Assuming without deciding that the plaintiffs satisfy a sufficient number of the five factors we consider in determining the propriety of a fee award under ERISA, see Losada v. Golden Gate Disposal Co., 950 F.2d 1395, 1401 (9th Cir.1991), we nonetheless conclude that a fee award is inappropriate now because they have not established a right to benefits, nor shown that the Plan or its fiduciaries have violated ERISA. “We have said in dictum that [the ERISA fee provision] permits an award of fees to a non-prevailing party.” Phillips, 944 F.2d at 521. Even if the prevailing party requirement does not apply wholesale in the ERISA context, however, the plaintiffs cannot recover fees under section 1132(g)(1) until they “succeed on any significant issue in litigation which achieves some of the benefit [they] sought in bringing suit.” Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589 (9th Cir.1984) (Smith II ) (quotation omitted). In Smith, there had been a finding that an employer had violated ERISA, see Smith v. CMTA-IAM Pension Trust, 654 F.2d 650, 653-54, 656-60 (9th Cir.1981) (Smith I), and we accordingly directed the district court to reconsider its denial of fees to Smith. Smith II, 746 F.2d at 591. Here, unlike the situation in the Smith appeals, there has been no determination yet that these employers violated ERISA. Reversal of summary judgment, on grounds of standing and limitations, is analogous to a remand of a benefits claim to an administering agency, e.g., Sullivan v. Hudson, 490 U.S. 877, 892, 109 S.Ct. 2248, 2257, 104 L.Ed.2d 941 (1989), or the reversal of a" }, { "docid": "3019063", "title": "", "text": "this issue. What vague contentions that have been made are meritless. E. Attorney’s Fees Plaintiffs filed two fee petitions with the district court, the first on November 14, 1986, and the second, a supplemental fee petition, on August 15, 1989. Each claimed the right to attorney’s fees and costs under 29 U.S.C. § 1132(g), which provides in relevant part: Attorney’s fees and costs; awards in actions involving delinquent contributions. (1) In any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party. The district court overruled plaintiffs’ motions for attorney fees on November 27, 1989. The decision to grant attorney’s fees is committed to the discretion of the district court, and its decision will not be disturbed absent a clear showing of abuse of discretion. E.g., Sweet v. Consolidated Aluminum Corp., 913 F.2d 268, 271 (6th Cir.1990); Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir.1987). Plaintiffs were not the prevailing party on the ERISA claim, and, therefore, it was not an abuse of discretion to deny plaintiffs’ motions for attorney’s fees. Bittner v. Sadoff & Rudoy Indus., 728 F.2d 820, 829 (7th Cir.1987) (“it would be an abuse of discretion for the district court to award attorney’s fees to a losing party, even though section 1132(g)(1) does not in so many words confine awards of attorney’s fees to winners.... ”); Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir.1984) (“a court may properly deny a claim for attorneys’ fees solely on the ground that the plaintiff obtained no relief under the statute.”). Plaintiffs argue that because they were successful on the Stock Incentive Plan issue, the district court has abused its discretion in denying their motion for attorney fees. They contend that the Stock Incentive Plan issue and the ERISA issue are somehow “inextricably bound together.” Although Congress has authorized the district courts to award attorney’s fees to prevailing litigants of ERISA claims under 29 U.S.C. § 1132(g), no similar authorization has been given by" }, { "docid": "22411454", "title": "", "text": "deter other persons from acting similarly under like circumstances, (4) the relative merits of the parties’ positions, and (5) whether the action conferred a common benefit on a group of pension plan participants. Chambless v. Masters, Mates & Pilots Pension Plan, 815 F.2d 869, 871 (2d Cir.1987). After concluding that the final factor was not applicable because the action involved only one beneficiary but that the first four factors weighed in favor of the plaintiff, the district court granted fees and costs to Miller. Miller, No. 93 Civ. 2057, slip op. at 8. In light of our holdings above, we remand to the district court for a reweighing of the factors under § 502(g)(1) and a recalculation of the amount, if any, of attorneys’ fees to be awarded to Miller. Notwithstanding that we decline to grant benefits to Miller but rather remand the district court’s determination for further consideration, an award of attorneys’ fees to plaintiff is not precluded. Section 502(g)(1) contains no requirement that the party awarded attorneys’ fees be the prevailing party. Cf. 29 U.S.C. § 1132(g)(2). The district court may award attorneys’ fees to either party “in its discretion.” Moreover, the district court may in fact determine that Miller is the prevailing party to the extent that her motion for summary judgment claimed that the Fund’s denial was arbitrary and capricious. See Sansevera v. E.I. DuPont de Nemours & Co., 859 F.Supp. 106, 117 (S.D.N.Y.1994) (granting attorneys’ fees to plaintiff whose summary judgment motion was partially granted as to claim that Plan Board acted arbitrarily and capriciously in denying benefits). CONCLUSION For the foregoing reasons we vacate and remand with instructions for further consideration in accordance with this opinion. . We note that the Fund's position in this regard is not consistent since it criticizes the court for' refusing to admit an Associate Professor of Nursing’s testimony, which was favorable to it, and for refusing to admit into evidence the Hospital’s nursing protocols. The Fund also cited in support of its motion for summary judgment an affidavit from Byrne, which was not part of the administrative record." }, { "docid": "16228470", "title": "", "text": "see, e.g., Downie, 934 F.2d at 1169; Gordon, 724 F.2d at 108. As the instant case is presented to us, plaintiffs did not prevail on any of their claims. Their first and second claims were dismissed with prejudice after reconsideration; their third claim was dismissed with prejudice when the court adopted the report of the special master; and their fourth claim was dismissed with prejudice in the court’s original memorandum opinion and order. Therefore, although we adhere to the rule that a district court must enunciate the reasons for a denial of a request for attorneys’ fees, when the party seeking fees did not prevail on any of its claims we decline to remand to require the district court to state that the party did not prevail. V Finally we come to plaintiffs’ objections to the district court's adoption of the special master’s report and recommendations regarding the distribution of the plan’s available assets upon termination. Plaintiffs object to the treatment of severance benefits and the method of allocating assets among participants. As to severance benefits, the plan provided that eligible participants who terminated their employment were entitled to a severance benefit. Section 5.2 of the plan provided that this benefit would be in the form of either a deferred pension benefit or a lump sum benefit, with the form of payment being “at the option of the [trustees].” Supp.App. No. 91-1029 at 15. In their June 4 amendment, the trustees provided that no severance benefits, in either form, would be paid to participants who terminated their employment on or after April 1, 1988 — the day after the effective date of the plan’s termination. The master fully agreed with this decision. The master said that he would do exactly the same thing to avoid undermining the legitimate pension rights of retired drivers in favor of drivers who generally have not yet reached retirement age under the Plan. By paying the severance benefits to severed drivers, the financial integrity of the Plan would be so impaired as to make the Plan almost meaningless to retirees. Id. at 43. This treatment" }, { "docid": "8072725", "title": "", "text": "applying a W-2 definition of employee, we do not address this issue further. V. ATTORNEY’S FEES We review a district court’s award or denial of a request for attorney’s fees for abuse of discretion. See McElwaine v. U.S. West, Inc., 176 F.3d 1167, 1171 (9th Cir.1999); Hope v. International Bhd. of Elec. Workers, 785 F.2d 826, 831 (9th Cir.1986). Here, however, plaintiffs as a matter of law are not entitled to recover attorney’s fees as ERISA permits the award of attorney’s fees only to a participant, beneficiary or fiduciary who succeeds on any significant issue in litigation which achieves some of the benefit brought in bringing suit. See 29 U.S.C. § 1132(g)(1); Flanagan v. Inland Empire Elec. Workers Pension Plan & Trust, 3 F.3d 1246, 1253 (9th Cir.1993). In light of our conclusions, it is clear the plaintiffs have not prevailed on any issue in the litigation and that a court would abuse its discretion if it awarded them attorney’s fees. Therefore, we reverse the district court’s award of attorney’s fees. VT. CONCLUSION We affirm the district court’s application of an abuse of discretion standard in reviewing the Plan administrators’ decisions, but we reverse its decision that the administrators abused their discretion by not applying the federal common law definition of employee, and we reverse the award of attorney’s fees. We remand the matter to the district court to enter judgment for the defendants. AFFIRMED IN NO. 99-35962; REVERSED IN NOS. 99-35936 and 00-35025. COSTS TAXED IN FAVOR OF DEFENDANTS-APPELLANTS-CROSS-APPELLEES. . The plaintiffs also raised breach of fiduciary duty claims against various members of the administrative committees in their individual capacities, and sought injunctive relief against the Bank of California, the trustee of funds for one of the Plans. On January 16, 1997, the district court granted the defendants' motion to dismiss the breach of fiduciary duty claims and consequently all individual defendants were dismissed from the case. The district court also dismissed the Bank of California as a party of no interest. . All parties consented to allow a magistrate judge enter final orders and judgments in this case" } ]

[ { "docid": "23145273", "title": "", "text": "cocaine base are not clearly erroneous. E. Finally, defendant Wilson makes two constitutional challenges to his conviction and sentence. First, Wilson argues that the treatment of cocaine base for purposes of sentencing as the equivalent of 100 times the same amount of cocaine powder under 21 U.S.C. § 841(b) is arbitrary and capricious and thus violates Equal Protection Standards under the Fifth Amendment. Second, he argues that the failure of Congress to define “cocaine base” in 21 U.S.C. § 841(b)(l)(B)(iii) renders the statute void for vagueness. These challenges are meritless. In Levy, 904 F.2d at 1032-33, we held that 21 U.S.C. § 841(b)(1)(B) which provides penalties for offenses involving 500 grams or more of cocaine or 5 grams or more of cocaine base is not unconstitutionally vague. To date, we have not addressed the issue of whether the penalty scheme under 21 U.S.C. § 841(b), which treats 1 gram of crack as the equivalent of 100 grams of cocaine, violates the Equal Protection Standards under the Fifth Amendment. However, in upholding the one to one hundred ratio set forth in 21 U.S.C. § 841(b) in the face of Substantive Due Process and Eighth Amendment challenges, we have held that the penalty scheme bears a reasonable relation to a legitimate end. See United States v. Pickett, 941 F.2d 411, 418 (6th Cir.1991) (One to one hundred ratio of crack to cocaine does not violate Substantive Due Process standards or constitute cruel and unusual punishment under the Eighth Amendment). In Pickett, we held that the one to one hundred ratio of crack to cocaine established by Congress was not irrational for two reasons. First, Congress was concerned that crack is a purer drug than cocaine and the speed with which it progresses to the brain “produces a significantly different effect that increases the likelihood of addiction.” Id., Second, we stated that Congress was clearly concerned that the special attributes of crack — its small size and cheap price per dose — could create other societal problems that required remedying. Senators noted that because crack is sold in small doses (called “rocks”) it" } ]

[ { "docid": "23367736", "title": "", "text": "usually deal cocaine base while white males tend to deal in powdered cocaine. Finally, they urge that the disparate impact on African-Americans is the kind of circumstance the Sentencing Commission did not consider, and thus, the district court erred in concluding it did not have authority to depart from the guidelines. We have on numerous occasions held that claims of error on failing to depart downward are not reviewable. Johnson, 28 F.3d at 1500; United States v. Evidente, 894 F.2d 1000, 1004 & n. 5 (8th Cir.) (failure-to-depart claims based on circumstances the Sentencing Commission did not adequately consider are not reviewable), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990); see Maxwell, 25 F.3d at 1400-01 (reversing district court’s departure based on disparate racial impact and concluding that Sentencing Commission’s failure to consider the disparate impact of the 100:1 ratio is not a ground for downward departure). C. MeMurray also contends that the district court erred in treating the powder cocaine he was convicted of distributing as cocaine base for the purpose of determining his sentence. After recognizing that the transaction at issue involved only powder cocaine, the court stated: It is clear that the powder was intended for conversion to “crack” since it is undisputed that MeMurray knew [Tracy Lomax] sold “crack.” The fact that the powder was seized before it was converted to crack is not significant. United States v. McMurray, 833 F.Supp. 1454, 1476 n. 31 (D.Neb.1993). The court further stated that it converted the amount of powder cocaine to cocaine base for the purpose of determining McMurray’s sentence because it did “not think the seizure of the powder cocaine ‘reflects] the scale of the offense’ unless the powder is treated as ‘crack.’ ” Id. (quoting U.S.S.G. § 2D1.1, cmt. n. 12). The Sentencing guidelines use a determination of the quantity and identity of the controlled substance attributed to the defendant to establish a base offense level. See U.S.S.G. § 2D1.1. “The government must establish by a preponderance of the evidence both the type and amount of drug attributable to each defendant.” Maxwell," }, { "docid": "23031549", "title": "", "text": "fact, Wilson testified with certainty that Parker participated in drug dealing in that very apartment (referred to as the ‘Winchester” apartment) and that the apartment was used for “cooking up weight.” Furthermore, Keith Baldwin testified without equivocation that Parker was present when two kilos of crack were delivered and processed. Importantly, the testimony of Baldwin and Wilson was otherwise entirely consistent regarding several other individuals present. Thus, the District Court’s overruling of Parker’s objection to the factual finding had better support in the record than the District Court articulated at the time; the District Court’s attribution of two kilos to Parker was not clearly erroneous. E. CONSTITUTIONAL ARGUMENTS 1. Constitutionality of the 100:1 Ratio Between Cocaine Base (Crack) and Cocaine Powder for Sentencing Purposes in the Guidelines This Court has held repeatedly that objections to the Sentencing Guidelines’ disparate punishments for crimes involving crack cocaine and cocaine powder are merit-less and the disparity is insufficient grounds for downward departure from guideline sentences. See United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 219, 130 L.Ed.2d 147 (1994); United States v. Tinker, 985 F.2d 241, 242 (6th Cir.1992), cert. denied, 507 U.S. 1040, 113 S.Ct. 1872, 123 L.Ed.2d 491 (1993); United States v. Pickett, 941 F.2d 411, 418-19 (6th Cir.1991). We are bound by Circuit precedent. Salmi v. Secretary of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985). 2. Constitutionality of the Completion of the Presentence Report Prior to Jury Verdict Defendant Clemmons, noting that the presentence report’s section on offense conduct was “primarily compiled prior to trial,” contends that “[i]t is, therefore, a violation of [his], due process rights to utilize information gathered] and compiled prior to [his] trial to determine the defendant’s culpability in the charged offense.” The argument is obviously without merit. Although Clem-mons is right when he argues that, constitutionally, “one cannot make a finding [of guilt] prior to trial,” he was found guilty by a jury which reached a verdict after trial (and there is no allegation that the jury had knowledge of the presentence report)." }, { "docid": "22856951", "title": "", "text": "discretion to depart”). Accordingly, the district court would not have been required to depart from the Guidelines even if Pickett’s legal premise for departure were correct. Second, a district court’s refusal to depart downward from a sentence within the properly computed guideline range is not appealable. United States v. Gregory, 932 F.2d 1167 (6th Cir.1991); United States v. Davis, 919 F.2d 1181, 1187 (6th Cir.1990); United States v. Smith, 918 F.2d 664, 667 (6th Cir.1990), cert. denied, - U.S.-, 111 S.Ct. 1088, 112 L.Ed.2d 1192 (1991); United States v. Draper, 888 F.2d 1100, 1105 (6th Cir.1989). Pickett’s 240-month sentence is within the properly computed range. Third, the 100:1 ratio is not a sufficiently unusual circumstance to justify a downward departure. United States v. Reina, 905 F.2d 638 (2d Cir.1990) (district court reversed for departing downward because “penalties for cocaine base ... are unduly harsh when compared to those for cocaine”). See, e.g., United States v. Davis, 900 F.2d 1524, 1539 (10th Cir.), cert. denied, - U.S. -, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990). Therefore, the district court acted properly in not departing downward. C Pickett also contends that the 100:1 ratio violates the substantive component of the due process clause. He argues that the effects of crack and cocaine are substantially identical, and that therefore any distinction made between them for sentencing purposes is arbitrary and irrational. A Congressional statute accords with substantive due process only if it bears a “reasonable relation to a proper legislative purpose, and [is] neither arbitrary nor discriminatory.” Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934). The 100:1 ratio merely tracks a similar ratio passed by Congress establishing an identical minimum sentence for crimes involving fifty grams of crack and those involving five thousand grams of cocaine. Compare 21 U.S.C. § 841(b)(l)(A)(ii)(II) (cocaine) with 21 U.S.C. § 841(b)(l)(A)(iii) (crack). Accordingly, we agree with the Eighth Circuit in United States v. Buckner, 894 F.2d 975 (1990) that the appropriate inquiry is whether Congress was acting arbitrarily or irrationally in establishing the 100:1 ratio in law. We believe" }, { "docid": "23455835", "title": "", "text": "intent,” see United States v. Moore, 54 F.3d 92, 99 (2d Cir.1995) (rejecting defendant’s effort to argue that heightened scrutiny applies); and declined to treat crack and cocaine traffickers as a suspect class, see United States v. Coleman, 166 F.3d 428 (2d Cir.1999) (per curiam), cert. denied, 526 U.S. 1138, 119 S.Ct. 1794, 143 L.Ed.2d 1021 (1999) (rejecting defendant’s argument that the policy positions of the Sentencing Commission and then-Attorney General Janet Reno in support of eliminating or reducing the ratio should trigger intermediate scrutiny). Separately, a panel of the Second Circuit also held that “the harsher penalties for crack crimes present no basis for downward departure.” United States v. Haynes, 985 F.2d 65, 70 (2d Cir.1993) (rejecting defendants’ argument that “because most crack users are African-Ameri- cans — while most cocaine users are white — the enhanced crack penalties unfairly punish African-Americans and should be a ground for downward departure” on the ground that “the enhanced penalties for crack reflect a rational and specific congressional aim of deterring drug transactions involving crack”). Other circuits reached the same conclusion, even after the Sentencing Commission issued the 1995 Report that expressed its dissatisfaction with the ratio. See United States v. Gaines, 122 F.3d 324, 329-30 (6th Cir.1997) (finding no authority for downward departure based on 1995 Report because “Congress made a deliberate and informed decision to keep the 100:1 ratio and not to adopt the 1:1 ratio” and “[w]hen Congress and the Sentencing Commission disagree on matters of sentencing policy, Congress trumps”); United States v. Berger, 103 F.3d 67, 71 (9th Cir.1996) (agreeing with other courts’ rejection of “the notion that a district court may override the express intention of Congress regarding penalties for crack cocaine and powder cocaine” and approvingly citing another court’s conclusion that “[i]t is not the province of this Court to second guess Congress’s chosen penalty”) (internal citations and quotation marks omitted); United States v. Sanchez, 81 F.3d 9, 11 (1st Cir.1996) (“[W]e cannot blind our eyes to the fact that the Congress shot down the Commission’s recommendation [to eliminate the 100:1 ratio]”); United States v. Lewis," }, { "docid": "2793799", "title": "", "text": "the authority to grant such a downward departure while the government contends' that the district court merely exercised its discretion in refusing to depart downward. We need not address the underlying rationale for the district court’s refusal to depart downward in this case. Regardless of whether this refusal was premised upon the district court’s lack of authority to depart' downward under the Sentencing Guidelines based upon the 100:1 ratio, see United States v. Herron, 97 F.3d 234, 239 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 998, 136 L.Ed.2d 877 (1997) (100:1 ratio “not a basis upon which a court may rely to depart downward under USSG 5K2.0”), or merely a discretionary refusal to do so, see United States v. Isom, 992 F.2d 91, 94 (6th Cir.1993) (discretionary refusal by district court to grant a downward departure under U.S.S.G. § 5K2.0 is unreviewable by this Court), this decision was not erroneous. 2. Washington’s final challenge presents a constitutional question for our review. He contends that the 100:1 ratio violates the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments, as well as the Cruel and Unusual Punishment Clause of the Eighth Amendment. Washington also maintains that differing interpretations of the term “cocaine base” render the Sentencing Guidelines unconstitutionally vague. These constitutional challenges to Washington’s sentence present questions of law over which we exercise de novo review. United States v. Knipp, 963 F.2d 839, 843 (6th Cir.1992). This court has previously heard and rejected each constitutional challenge Washington presents to the 100:1 ratio. United States v. Smith, 73 F.3d 1414, 1419 (6th Cir.1996) (Jones, J., concurring) (cataloguing Sixth Circuit cases rejecting constitutional challenges to 100:1 ratio). In United States v. Pickett, 941 F.2d 411 (6th Cir.1991), we held that the 100:1 ratio does not violate the substantive component of the Due Process Clause or the Cruel and Unusual Punishment Clause of the Eighth Amendment. Id. at 418-19. Likewise, in United States v. Williams, 962 F.2d 1218, 1227 (6th Cir.1992), we rejected an equal protection challenge to the ratio brought under the Fifth Amendment. In United States v." }, { "docid": "23235155", "title": "", "text": "52 F.3d 571, 579 (6th Cir.1995); United States v. Johnson, 46 F.3d 19, 20 (6th Cir.1995). The government has given reasons, both in its brief to this court and to the district court at sentencing, for its decision not to move for departure, and Williams has not disputed those reasons. Finally, Williams’s acceptance of responsibility is not the same as substantial assistance (even if sometimes lack of the former is used to bolster an argument for failing to depart on the latter), and his three-level reduction for acceptance of responsibility in no way obligates the government to ask for a departure. B Defendant Marshon Mays first argues that the 100:1 sentencing ratio for crack versus powder cocaine is unconstitutional, but then admits that this circuit has consistently denied the unconstitutionality of the crack-powder ratio. See, e.g., United States v. Hill, 79 F.3d 1477, 1488 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996); United States v. Tinker, 985 F.2d 241, 242 (6th Cir.1992), cert. denied, 507 U.S. 1040, 113 S.Ct. 1872, 123 L.Ed.2d 491 (1993). See also United States v. Gaines, 122 F.3d 324, 329-30 (6th Cir.) (holding that district court did not have authority to depart based on Sentencing Commission’s proposal to eliminate the 100:1 ratio, because Congress affirmatively rejected that proposal), cert. denied, — U.S. -, 118 S.Ct. 396, 139 L.Ed.2d 310 (1997). We are bound by these circuit precedents. Mays’s second argument is that the government did not prove that the substance he distributed was the crack form of cocaine base. Because Mays did not object to the drug’s characterization as crack at his plea hearing or sentencing, this court reviews the issue for plain error. See United States v. Causey, 834 F.2d 1277, 1281 (6th Cir.1987) (“Plain errors are limited to those harmful ones that are so rank that they should have been apparent to the trial judge without objection, or that strike at the fundamental fairness, honesty, or public reputation of the trial.”), cert. denied, 486 U.S. 1034, 108 S.Ct. 2019, 100 L.Ed.2d 606 (1988). The government bears the burden" }, { "docid": "15356749", "title": "", "text": "to Booker, this court held that disagreement with the 100:1 ratio was not a permissible basis for a downward departure from the Guidelines range. United States v. Gaines, 122 F.3d 324, 330 (6th Cir.1997). As we discuss below, since Booker this court has held that the 100:1 ratio does not itself render a sentence unreasonable. United States v. Caver, 470 F.3d 220, 249 (6th Cir.2006). Asher The district court did not err in Asher’s case by relying on the crack cocaine ratio when calculating the recommended Guidelines range applicable to Asher. Asher’s principal argument in this appeal is that the district court erred by treating the crack cocaine Guidelines as “mandatory” in determining the Guidelines range applicable to him. However, this court has held that “while a departure from the 100:1 ratio may well be reasonable in a particular case, applying the ratio does not, ipso facto, make a sentence unreasonable under existing case law.” Caver, 470 F.3d at 249. Furthermore, in calculating Asher’s Guidelines range the district court was obligated to use the crack cocaine ratio contained in the Guidelines. See id. “Only after computing the guidelines range using the correct 100:1 ratio does the district judge have discretion to impose a sentence that is above or below that range.” United States v. Wallace, 458 F.3d 606, 611 (7th Cir.2006). Like the defendant in Caver, Asher “points to nothing about the particular facts of his case that make his sentence unreasonable.” Caver, 470 F.3d at 249. Asher also challenges the substantive reasonableness of the sentence imposed. The only argument that Asher offers in this vein is that “his prior offenses, although numerous in nature, were not as aggravating as one would believe based upon their statutory definitions.” The district court heard Asher’s mitigation arguments and nonetheless found that his extensive criminal history as well as the seriousness of the current offense warranted the sentence imposed. That many of Asher’s past crimes may have been mitigated to some degree by the surrounding circumstances hardly renders the district court’s sentence unreasonable. Additionally, because Asher’s sentence is within the properly calculated Guidelines" }, { "docid": "23431522", "title": "", "text": "v. Teague, 93 F.3d 81, 84—85 (2d Cir.1996) (rejecting an equal protection challenge to the disparate impact of the 100:1 quantity ratio between blacks and whites, concluding there was no evidence \"Congress reaffirmed the sentencing disparity at least in part 'because of,' not merely 'in spite of,' its adverse effects upon blacks” (internal quotation omitted)); United States v. Hayden, 85 F.3d 153, 157-58 (4th Cir.1996) (rejecting a constitutional challenge to the 100:1 quantity ratio based on Fourth Circuit precedent, and noting \"Congress rejected the Sentencing Commission's [1995] report and recommendation and refused to change the disparity in crack cocaine versus powder cocaine sentences”); United States v. Anderson, 82 F.3d 436, 440-42 (D.C.Cir.1996) (rejecting the proposition the crack/powder disparity can serve as a valid basis for downward departure); United States v. Sanchez, 81 F.3d 9, 11 (1st Cir.1996) (affirming the district court’s denial of a downward departure based on the Sentencing Commissions's 1995 report and recommendations, and concluding \"we cannot blind our eyes to the fact that the Congress shot down the Commission’s recommendation [to eliminate the 100:1 ratio]”); United States v. Alton, 60 F.3d 1065, 1071 (3d Cir.1995) (reversing the district court’s downward departure based on the disparate impact of the 100:1 quantity ratio, and reasoning \"[w]e defer to Congress and the Sentencing Commission to address the related policy issues and to consider the wisdom of retaining the present sentencing scheme”); United States v. Jones, 54 F.3d 1285, 1293-94 (7th Cir.1995) (rejecting defendant’s challenge that the disparity in sentencing between crack cocaine and powder cocaine offenses disproportionately impacts African-Americans and violates due process, concluding Congress did not act with a discriminatory intent when it allowed the Guidelines disparate sentencing scheme); United States v. Robertson, 45 F.3d 1423, 1445-46 (10th Cir.1995) (rejecting defendant’s challenge that the distinction between crack cocaine and powder cocaine offenses \"violate equal protection of the laws and constitute cruel and unusual punishment”). . The government voluntarily withdrew an appeal in the Perry case; however, the First Circuit rejected similar reasoning in United States v. Pho, 433 F.3d 53, 54-57 (1st Cir.2006), abrogating Perry. . The Sentencing Commission’s" }, { "docid": "23375824", "title": "", "text": "Cir.2010). Marrero claims that the district court did not understand its authority to categorically disagree with the crack-cocaine Guidelines, making his sentence procedurally deficient. See Moore v. United States, 555 U.S. 1, 129 S.Ct. 4, 172 L.Ed.2d 1 (2008) (per curiam); United States v. Johnson, 553 F.3d 990, 996 (6th Cir.2009). In the proceedings below, Marrero repeatedly contested the application of the crack-cocaine disparity to his sentence. However, Marrero never argued to the district court that it should impose a downward departure based on a categorical disagreement with the Guidelines. Rather, he only argued for a downward departure based on his mistaken belief that Congress had eliminated the contested disparity. Additionally, Marrero responded negatively when, at the close of the sentencing hearing, the district court asked him whether he had “any other objections to the sentence ... imposed.” As a result, we review his request for remand under a plain-error standard. See United States v. Simmons, 587 F.3d 348, 354-58 (6th Cir.2009) (determining that plain-error review applied to defendant’s procedural argument for remand in light of Kimbrough, even though defendant’s counsel at sentencing had “devoted much of her argument [at sentencing] to the idea that a downward variance was warranted ... because of the Guidelines’ disparate treatment of crack and powder cocaine offenses” and had, when asked if she had additional objections, raised a vague objection to the “procedural, substantive aspects” of defendant’s sentence), cert. denied, — U.S. -, 130 S.Ct. 2116, 176 L.Ed.2d 741 (2010). See generally United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc); United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). As this Court previously held in Michael, “the district court’s error, if any, in failing affirmatively to recognize its discretion to reject the statutory 100:1 ratio as implicitly incorporated into U.S.S.G. § 4B1.1 was not plain.” 576 F.3d at 328 (citing United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008)). In this case, the district court explicitly recognized that “the guidelines are advisory to the Court.” It also discussed its consideration of the 18 U.S.C. § 3553(a) factors, explaining" }, { "docid": "23367735", "title": "", "text": "Congress or the Sentencing Commission acted with a discriminatory purpose in enacting section 841 or guideline section 2D1.1); United States v. Maxwell, 25 F.3d 1389, 1396-97 (8th Cir.1994) (rejecting an equal protection challenge to the crack penalties of the sentencing guidelines). B. The appellants next argue that the district court erred in determining it could not depart downward pursuant to 18 U.S.C. § 3553(b) in imposing their sentences. 18 U.S.C. Section 3553(b) requires a court to impose a sentence within the guideline range “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” Appellants argue that Congress and the Sentencing Commission relied on “inaccurate and inadequate” information which led to the adoption of harsher penalties by a 100:1 ratio for offenses involving cocaine base. They contend that these increased penalties have a disparate adverse impact on the sentences of African-Americans because black males usually deal cocaine base while white males tend to deal in powdered cocaine. Finally, they urge that the disparate impact on African-Americans is the kind of circumstance the Sentencing Commission did not consider, and thus, the district court erred in concluding it did not have authority to depart from the guidelines. We have on numerous occasions held that claims of error on failing to depart downward are not reviewable. Johnson, 28 F.3d at 1500; United States v. Evidente, 894 F.2d 1000, 1004 & n. 5 (8th Cir.) (failure-to-depart claims based on circumstances the Sentencing Commission did not adequately consider are not reviewable), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990); see Maxwell, 25 F.3d at 1400-01 (reversing district court’s departure based on disparate racial impact and concluding that Sentencing Commission’s failure to consider the disparate impact of the 100:1 ratio is not a ground for downward departure). C. MeMurray also contends that the district court erred in treating the powder cocaine he was convicted of distributing as cocaine base for the" }, { "docid": "10565172", "title": "", "text": "980 (8th Cir.1990); see also United States v. Williams, 982 F.2d 1209, 1213 (8th Cir.1992). The defendants contend, however, that a class of cocaine base offenders, specifically African Americans, should receive sentences that are not as harsh as those that Congress intended. We disagree. See United States v. Prestemon, 929 F.2d 1275, 1277 (8th Cir.1991) (holding that a defendant’s race cannot be a basis for departure), cert. denied, - U.S. -, 112 S.Ct. 220, 116 L.Ed.2d 178 (1991). Congress provided for more severe penalties for all, not merely some, cocaine base offenders. In United States v. Bynum, the Fourth Circuit held that the Sentencing Commission’s failure to consider the disparate impact of the 100:1 ratio is not a ground for downward departure. 3 F.3d 769, 774-75 (4th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1105, 127 L.Ed.2d 416 (1994). The court reasoned that a downward departure based on a racially disparate impact will ultimately result in “class-wide downward departures” and impede Congress’s policy decision to treat cocaine base more harshly than powder cocaine. Id. In light of this reasoning and our holding in Lattimore, we conclude that the disparate impact of the 100:1 ratio is not a proper basis for downward departure. See also United States v. Haynes, 985 F.2d 65, 70 (2d Cir.1993) (holding that “the harsher penalties for crack crimes present no basis for downward departure.”). Accordingly, we affirm the defendants’ convictions, vacate their sentences, and remand the cases to the district court for re-sentencing within the applicable Guidelines ranges. . All references are to the November 1992 Guidelines Manual. . Although a large portion of the cocaine that Maxwell distributed to Brown was in powder form, the district court held Maxwell accountable for cocaine base. The district court committed no error in doing so, however. Brown informed Maxwell of his intent to convert into cocaine base all of the cocaine powder that Maxwell supplied to him." }, { "docid": "23431519", "title": "", "text": "make a proper analysis under § 3553(a) and by granting a downward variance based solely on its rejection of the 100:1 quantity ratio. III. CONCLUSION We affirm Spears’s conviction, and we reverse his sentence and remand to the district court for resentencing consistent with this opinion. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . The 100:1 ratio relates to the relative quantities of powder cocaine and crack cocaine required to trigger similar penalties and not the length of the sentence imposed. Nonetheless, the 100:1 ratio is often referred to as a \"sentencing ratio.” . The dangers associated with crack cocaine include (1) crack cocaine’s association with violent street crimes — gangs, guns, serious injury, and death; (2) crack cocaine's relative low-cost and widespread availability, making it accessible to the most vulnerable members of society; and (3) crack cocaine being more addictive because it is smoked, producing a more intense psychological and psychotropic effect than powder cocaine, which is snorted. United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 3-4 (April 1997) (1997 Report), available at http://www.ussc. gov/r — congress/newcrack.pdf. Crack cocaine is not the only illicit drug Congress assigned a low quantity threshold sentencing trigger. For example, five grams of methamphetamine and one gram of LSD trigger the same five-year mandatory minimum sentence as do five grams of crack cocaine. See 21 U.S.C. § 841(b)(l)(B)(iii)-(viii). . For example, in United States v. Lewis, 90 F.3d 302, 306 (8th Cir.1996), our circuit rejected an equal protection challenge, which was based on the Sentencing Commission’s 1995 recommendations to eliminate the 100:1 quantity ratio due to its disparate impact on African-American defendants, holding, ’’[i]t is not for us to decide whether the 100:1 ratio is wise or equitable; that is a question for the popularly chosen branches of government.” The other circuits reached similar conclusions. See United States v. Gaines, 122 F.3d 324, 329-30 (6th Cir.1997) (concluding \"Congress did not grant the courts broad discretion to apply the sentencing ratio of their choosing based on alleged injustices inherent in the 100:1" }, { "docid": "3036565", "title": "", "text": "RICHARD S. ARNOLD, Chief Judge. In this case we are asked to hold that recent developments concerning the Sentencing Guidelines’ 100:1 ratio between “crack” and powder cocaine justify a downward departure from the sentences prescribed by the Guidelines for “crack” offenses. The District Court rejected this contention, and we affirm. I. A jury convicted the appellants of various drug-related crimes. At the initial sentencing, the District Court rejected the appellants’ equal-protection challenge to the 100:1 crack / powder ratio, but nonetheless departed downward from the applicable guideline range. The Court noted the ratio’s disparate impact on black defendants and stated that “ ‘[tjhis disparate impact was not contemplated by Congress nor was it considered by the Sentencing Commission in developing the guideline ranges for users of crack cocaine.’ ” United States v. Maxwell, 25 F.3d 1389, 1400 (8th Cir.) (citation omitted), cert. denied, — U.S. -, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994). Delano Maxwell and Hassan Majied received 20-year prison sentences; Martin Lewis and Chester Davis were given 10-year terms. We reversed, and remanded the case for resentencing, holding that [Wjhile [the] racially disparate impact [of the ratio] may be a serious matter, it is not a matter for the courts, and, therefore, not a basis upon which a court may rely to impose a sentence outside of the applicable Guidelines range. Id. at 1401 (citation omitted); see also United States v. Lattimore, 974 F.2d 971, 976 (8th Cir.1992) (“This is not to say that a racially disparate impact is not a serious matter.”), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). We noted that “Congress specifically intended to provide more severe penalties for cocaine base....” Maxwell, 25 F.3d at 1401; see also Lattimore, 974 F.2d at 975-76 (“Congress was reacting to the dramatic appearance of crack on America’s streets and the violent impact crack would have upon the drug trade in the United States .... ”); see generally United States v. Buckner, 894 F.2d 975, 978-80 & n. 9 (8th Cir.1990) (describing legislative history). ' At resentencing, the appellants again moved for downward departure." }, { "docid": "23375823", "title": "", "text": "held that a district court may vary a defendant’s sentence upon concluding that “the craek/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case,” id. at 110, 128 S.Ct. 558. See also Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009) (per curiam) (“[District courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”). Though Marrero was sentenced under the career-offender provisions of U.S.S.G. § 4B1.1 rather than the drug-quantity table of U.S.S.G. § 2D1.1, the sentencing disparity between crack and powder cocaine offenses is “implicitly incorporated” in his career-offender enhancement. United States v. Michael, 576 F.3d 323, 327 (6th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 819, 175 L.Ed.2d 574 (2009). Therefore, the logic of Kimbrough and Spears still applies, and a “categorical disagreement with the [erack-to-powdercocaine] ratio may ... support a district court’s rejection of the career offender enhancement.” United States v. Curb, 625 F.3d 968, 972 (6th Cir.2010). Marrero claims that the district court did not understand its authority to categorically disagree with the crack-cocaine Guidelines, making his sentence procedurally deficient. See Moore v. United States, 555 U.S. 1, 129 S.Ct. 4, 172 L.Ed.2d 1 (2008) (per curiam); United States v. Johnson, 553 F.3d 990, 996 (6th Cir.2009). In the proceedings below, Marrero repeatedly contested the application of the crack-cocaine disparity to his sentence. However, Marrero never argued to the district court that it should impose a downward departure based on a categorical disagreement with the Guidelines. Rather, he only argued for a downward departure based on his mistaken belief that Congress had eliminated the contested disparity. Additionally, Marrero responded negatively when, at the close of the sentencing hearing, the district court asked him whether he had “any other objections to the sentence ... imposed.” As a result, we review his request for remand under a plain-error standard. See United States v. Simmons, 587 F.3d 348, 354-58 (6th Cir.2009) (determining that plain-error review applied to defendant’s procedural argument for remand in light" }, { "docid": "15356748", "title": "", "text": "district court recognized its discretion to depart from the Guidelines’ criminal history calculation, since it did so. Reeves’ argument on appeal is simply that the district court did not depart enough. A challenge to the extent of a departure is no more reviewable than the decision not to grant a departure at all, and we therefore decline to consider this argument. Reeves’ second argument, that his sentence was unreasonable because it was greater than necessary to accomplish the goals articulated by § 3553(a), is also without merit. Reeves’ argument on this issue is generally a restatement of the factors relevant to the nature of the offense and his character and history as presented in his sentencing memorandum to the district court. However, Reeves does not argue that the district court failed to consider any of these factors, nor does he offer any argument as to why the district court’s determination was unreasonable in light of those factors. Reeves also argues that “discrepancy between sentences imposed for powder cocaine and crack offenses are unjust.” Pri- or to Booker, this court held that disagreement with the 100:1 ratio was not a permissible basis for a downward departure from the Guidelines range. United States v. Gaines, 122 F.3d 324, 330 (6th Cir.1997). As we discuss below, since Booker this court has held that the 100:1 ratio does not itself render a sentence unreasonable. United States v. Caver, 470 F.3d 220, 249 (6th Cir.2006). Asher The district court did not err in Asher’s case by relying on the crack cocaine ratio when calculating the recommended Guidelines range applicable to Asher. Asher’s principal argument in this appeal is that the district court erred by treating the crack cocaine Guidelines as “mandatory” in determining the Guidelines range applicable to him. However, this court has held that “while a departure from the 100:1 ratio may well be reasonable in a particular case, applying the ratio does not, ipso facto, make a sentence unreasonable under existing case law.” Caver, 470 F.3d at 249. Furthermore, in calculating Asher’s Guidelines range the district court was obligated to use the crack" }, { "docid": "6005426", "title": "", "text": "the jury to inadmissible hearsay when it allowed James Slosson, a special agent with the Bureau of Alcohol, Tobacco, and Firearms, to testify about certain remarks made by Antonio Nelson during an undercover drug buy. We summarily reject this argument, however, because the testimony was clearly allowable as descriptive of a statement made by one of Bass’s coconspirators during the course of and in furtherance of the conspiracy. See Fed.R.Evid. 801(d)(2)(E); United States v. Darden, 70 F.3d 1507, 1529-30 (8th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 1449, 134 L.Ed.2d 569, and cert. denied, — U.S.-, 116 S.Ct. 2567, 135 L.Ed.2d 1084 (1996). As a result, Nelson’s out of court statement is “not hearsay” under the Federal Rules of Evidence. Fed.R.Evid. 801(d)(2)(E). 4. Sentencing issue Bass’s final allegation on appeal is that the district court committed error when it refused to depart downward in order to mitigate the harsh 100-to-l ratio between sentences for crack and powder cocaine. Bass recognizes that we have rejected this and similar arguments time and time again. See, e.g., United States v. Johnson, 108 F.3d 919, 922 (8th Cir.1997)(mentioning that we have repeatedly upheld the constitutionality of U.S.S.G. § 2D1.1); United States v. Higgs, 72 F.3d 69, 70 (8th Cir.1995)(holding that district court did not commit error in refusing to depart downward based on 100-to-l ratio). Still, he “respectfully disagrees” with our previous decisions and suggests that it is our “duty to declare that the punishment for crack versus powder cocaine is repugnant and unjust.” Bass’s Br. at 14. We are sympathetic toward Bass’s entreaties, but it is not for us to reverse a well-established pattern of this Court’s case law. A single panel cannot effectuate a change in our approach to the 100-to-l ratio; such action can originate only from the Court en banc. See Johnson, 108 F.3d at 922. Bound by our prior opinions, we hold that the district court did not commit error when it denied Bass’s motion for a downward departure. B. Wakefield Wakefield contests only one component of the sentence the district court imposed after accepting his guilty plea." }, { "docid": "23411276", "title": "", "text": "a preponderance of the evidence that there is sentencing entrapment. The alleged error is unappealable. Therefore, the fourth issue raised by defendant has no merit. E. Next, defendant argues that the district court incorrectly calculated the quantity of illegal drugs involved using a 100-to-l ratio for the cocaine base. His entire argument for this issue is as follows: [Defendant] objects to the calculations of the drug quantity in which cocaine base is calculated at a value 100 times greater than the value of cocaine. This calculation places a disproportionate value on cocaine base compared to cocaine. The Government argues that there is no merit to defendant’s argument, based on Sixth Circuit precedent that it cites. The standard of review is de novo with respect to this issue because it concerns correct application of the sentencing guidelines, which is a legal conclusion. See United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir.1996) (citing United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993)). This Court has held repeatedly that objections to the Sentencing Guidelines’ disparate punishments for crimes involving crack cocaine and cocaine powder are meritless and the disparity is insufficient grounds for downward departure from guideline sentences. See United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir.1993), cert. denied, 513 U.S. 883, 115 S.Ct. 219, 130 L.Ed.2d 147 (1994); United States v. Tinker, 985 F.2d 241, 242 (6th Cir.1992), cert. denied, 507 U.S. 1040, 113 S.Ct. 1872, 123 L.Ed.2d 491 (1993); United States v. Pickett, 941 F.2d 411, 418-19 (6th Cir.1991). United States v. Welch, 97 F.3d 142, 154 (6th Cir.1996), cert. denied, 519 U.S. 1134, 117 S.Ct. 999, 136 L.Ed.2d 879 (1997). Defendant essentially challenges the disparate treatment of cocaine versus cocaine base in quantity calculations for sentencing purposes. He offers, however, no reason to conclude that such disparate treatment of these substances is inappropriate, and cites no authority to support his position. Furthermore, as noted above, this Court has previously addressed this issue and held that such a challenge is without merit. Id. F. Finally, defendant asserts that the district court’s response to a question asked" }, { "docid": "23455836", "title": "", "text": "reached the same conclusion, even after the Sentencing Commission issued the 1995 Report that expressed its dissatisfaction with the ratio. See United States v. Gaines, 122 F.3d 324, 329-30 (6th Cir.1997) (finding no authority for downward departure based on 1995 Report because “Congress made a deliberate and informed decision to keep the 100:1 ratio and not to adopt the 1:1 ratio” and “[w]hen Congress and the Sentencing Commission disagree on matters of sentencing policy, Congress trumps”); United States v. Berger, 103 F.3d 67, 71 (9th Cir.1996) (agreeing with other courts’ rejection of “the notion that a district court may override the express intention of Congress regarding penalties for crack cocaine and powder cocaine” and approvingly citing another court’s conclusion that “[i]t is not the province of this Court to second guess Congress’s chosen penalty”) (internal citations and quotation marks omitted); United States v. Sanchez, 81 F.3d 9, 11 (1st Cir.1996) (“[W]e cannot blind our eyes to the fact that the Congress shot down the Commission’s recommendation [to eliminate the 100:1 ratio]”); United States v. Lewis, 90 F.3d 302, 306 (8th Cir.1996) (“It is not for [the courts] to decide whether the 100:1 ratio is wise or equitable; that is a question for the popularly chosen branches of government.”); United States v. Alton, 60 F.3d 1065, 1071 (3d Cir.1995) (“We defer to Congress and the Sentencing Commission to address the related policy issues [involving the disparate impact of crack cocaine penalties on African-Americans] and to consider the wisdom of retaining the present sentencing scheme”). With constitutional challenges foreclosed and departure authority rejected, by the end of the 1990s there seemed to be little role that the courts could play with respect to the crack/powder ratio, other than implementing it as written. All of this was put into question, however, after the Supreme Court issued its decision in Booker in January of 2005. C. In Booker, the Supreme Court considered two different cases involving sentences for crack and powder cocaine offenses. The first defendant, Freddie Booker, had been convicted by a jury of possession with intent to distribute at least 50 grams" }, { "docid": "2793798", "title": "", "text": "Washington always negotiated the drug sales, and that he often used codefendant Smith as his courier, referring to Smith as “his girl” when informing Pardue that she would deliver the drugs to him. In light of this testimony, the district court did not commit clear error in enhancing Washington’s sentence under § 3B1.1 for exercising a leadership role in the drug transactions. D. Having disposed of Washington’s challenges to his indictment, the sufficiency of the evidence against him, and his sentencing enhancement, we now reach Washington’s final two arguments. Each stems from the 100:1 ratio contained in U.S.S.G. § 2D1.1. Washington contends that the 100:1 ratio: (1) provides a ground for downward departure at sentencing under U.S.S.G. § 5K2.0; and (2) is unconstitutional. 1. Washington argued at sentencing that his “offense level should be substantially reduced as a result of th[e sentencing] disparity between powder cocaine and ‘crack’ cocaine.” The district court refused to grant Washington a downward departure based upon the 100:1 ratio. Washington asserts that the district court erroneously concluded that it lacked the authority to grant such a downward departure while the government contends' that the district court merely exercised its discretion in refusing to depart downward. We need not address the underlying rationale for the district court’s refusal to depart downward in this case. Regardless of whether this refusal was premised upon the district court’s lack of authority to depart' downward under the Sentencing Guidelines based upon the 100:1 ratio, see United States v. Herron, 97 F.3d 234, 239 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 998, 136 L.Ed.2d 877 (1997) (100:1 ratio “not a basis upon which a court may rely to depart downward under USSG 5K2.0”), or merely a discretionary refusal to do so, see United States v. Isom, 992 F.2d 91, 94 (6th Cir.1993) (discretionary refusal by district court to grant a downward departure under U.S.S.G. § 5K2.0 is unreviewable by this Court), this decision was not erroneous. 2. Washington’s final challenge presents a constitutional question for our review. He contends that the 100:1 ratio violates the Due Process and Equal" }, { "docid": "6611407", "title": "", "text": "PER CURIAM. Henry Lee Carter appeals the 210-month sentence imposed by the district court after he pleaded guilty to possessing cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We affirm. At sentencing, Carter, an African-American, objected to his offense-level calculation, which was derived from the penalty scheme set forth in 21 U.S.C. § 841(b)(1), providing the same penalties for given amounts of crack and 100 times greater amounts of powder cocaine (“the 100-to-l ratio”). Carter’s objection was premised on Congress’s rejection of a proposed amendment to the Sentencing Guidelines — Amendment 5 — which would have eliminated the 100-to-l ratio and equalized the penalties for crack and powder cocaine. Carter argued the 100-to-l ratio had a disproportionate adverse effect on African-Americans, Congress’s rejection of Amendment 5 evidenced a discriminatory purpose on Congress’s part in maintaining the penalty scheme, and thus, continued application of the penalty scheme violated his Fifth Amendment equal protection and due process rights. Carter also sought a downward departure under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, because the Sentencing Commission had concluded the 100-to-l ratio was not justified. The district court overruled Carter’s objection and denied his downward-departure request, and he appeals. We review de novo Carter’s equal protection challenge. See United States v. McMurray, 34 F.3d 1405, 1413 (8th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1164, 130 L.Ed.2d 1119 (1995). A statute not involving a suspect class or a fundamental right enjoys a strong presumption of validity, and will survive an equal protection ehal- lenge if it is rationally related to a legitimate governmental purpose. Independent Charities of Am., Inc. v. State of Minn., 82 F.3d 791, 797 (8th Cir.1996); United States v. House, 939 F.2d 659, 664 (8th Cir.1991). When a race-neutral statute is challenged on the ground that it has a disproportionate adverse effect upon racial minorities, we must determine if the adverse effect “reflects invidious [race]-based discrimination.” See Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979). As applied here then, the disproportionate adverse effect" } ]

[ { "docid": "7001863", "title": "", "text": "supervised release. A sentencing judge is afforded wide discretion when imposing terms of supervised release, see United States v. Crose, 284 F.3d 911, 912 (8th Cir.2002) (per curiam), and we review a decision to impose special terms of supervised release for abuse of that discretion. United States v. Weiss, 328 F.3d 414, 417 (8th Cir.2003). But this discretion is limited by 18 U.S.C. § 3583(d), which provides that a court may impose only those special conditions of supervised release that satisfy three statute- ry requirements. First, the special conditions must be “reasonably related” to five matters: the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical or other correctional needs. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D); United States v. Fields, 324 F.3d 1025, 1026-27 (8th Cir.2003). Second, the conditions must “involve[] no greater deprivation of liberty than is reasonably necessary” to advance deterrence, the protection of the public from future crimes of the defendant, and the defendant’s correctional needs. 18 U.S.C. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the conditions must be consistent with any pertinent policy statements issued by the sentencing commission. 18 U.S.C. § 3583(d)(3). Mr. Crume argues that the conditions imposed, including those restricting his use of computers and the Internet, prohibiting him from being in places where minor children congregate, and restricting his contact with children under the age of eighteen, fail to satisfy the requirements of § 3583(d). He first argues that the conditions of supervised release that completely bar his access to computers and the Internet (without first receiving written consent from his probation officer) represent a greater deprivation of his first amendment rights than is reasonably necessary. Although the district court is entrusted with broad discretion to fashion special conditions of supervised release, we are particularly reluctant to uphold sweeping restrictions on important constitutional rights. Our decisions to uphold similar restrictions on Internet access and computer use in United States v. Ristine, 335 F.3d 692, 696 (8th Cir.2003)," } ]

[ { "docid": "21034492", "title": "", "text": "special condition forbidding him from possessing any computer in his home or using any on-line computer service without the written approval of the probation officer is overly broad; it involves a greater deprivation of liberty than is reasonably necessary to deter future criminal conduct and to protect the public. 18 U.S.C. § 3553(a)(2). United States v. Sofsky, 287 F.3d 122, 124 (2d Cir.2002) (vacating condition that would require probation officer to approve all computer and internet access by a defendant who pled guilty to receiving child pornography over the internet). As in Sofsky, a total ban on internet access prevents use of email, an increasingly widely used form of communication, and other common-place computer uses such as getting a weather forecast or reading a newspaper online. Id. at 126. There is no need to cut off Freeman’s access to email or benign internet usage when a more focused restriction, limited to pornography sites and images, can be enforced by unannounced inspections of material stored on Freeman’s hard drive or removable disks. Id. Although we have previously allowed a condition restricting all internet access, see United States v. Crandon, 173 F.3d 122, 125 (3d Cir.1999), the defendant in Crandon used the internet to contact young children and solicit inappropriate sexual contact with them. Such use of the internet is harmful to the victims contacted and more difficult to trace than simply using the internet to view pornographic web sites. There is nothing in this record to suggest that Freeman has used the internet to contact young children. We are not in any way limiting our ability to so restrict the use of computers when a defendant has a past history of using the internet to contact children. See United States v. Lee, 315 F.3d 206, 210 fn. 1 (3d Cir.2002) (Condition 5 of supervised release prohibits defendant from owning or using a personal computer with Internet access in his home, except for work). Moreover, if Freeman does not abide by more limited conditions of release permitting benign internet use, it might be appropriate to ban all use. Under the record before" }, { "docid": "22783757", "title": "", "text": "upheld similar restrictions on a convicted sex offender’s use of the Internet. See, e.g., United States v. Paul, 274 F.3d 155, 169- 70 (5th Cir.2001) (upholding complete ban); United States v. Walser, 275 F.3d 981, 988 (10th Cir.2001) (upholding prohibition where offender could use the Internet with permission of the probation office); United States v. Ristine, 335 F.3d 692, 696 (8th Cir.2003) (district court did not commit plain error in restricting defendant’s use of computer and access to Internet where defendant had possessed and exchanged pornographic images with other Internet users and defendant could still possess computer with permission of his probation officer); United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir.2003) (limited restriction on child pornography offender’s Internet usage was reasonably related to legitimate sentencing considerations). Some have not. See, e.g., United States v. Sofsky, 287 F.3d 122, 126 (2d Cir.2002); United States v. Freeman, 316 F.3d 386, 391-92 (3d Cir.2003); and United States v. White, 244 F.3d 1199, 1206 (10th Cir.2001); see also United States v. Scott, 316 F.3d 733, 737 (7th Cir.2003) (indicating that a record of “extensive abuse” of digital communications, as opposed to only a few images of child pornography stored on a computer, could justify an outright ban on the Internet). Courts upholding restrictions reason that there is a “strong link between child pornography and the Internet, and the need to protect the public, particularly children, from sex offenders,” Zinn, 321 F.3d at 1092, while those rejecting prohibitions on Internet use are more impressed with the “virtually indispensable” nature of the Internet in today’s world. See Sofsky, 287 F.3d at 126. We are persuaded that limiting Rearden’s Internet access without prior approval of the Probation Office is reasonably related to the offense that involved e-mail transmissions of quite graphic child pornography, and to the important goal of deterring him during the period of supervision from reverting to similar conduct, and thus, to rehabilitation and protecting the public. The condition does not plainly involve a greater deprivation of liberty than is reasonably necessary for the purpose because it is not absolute; rather, it allows" }, { "docid": "20453642", "title": "", "text": "material, or, alternatively, would require that his Internet use be monitored remotely by the Probation Office. Appellant’s Br. at 22-25. The Internet prohibition will, no doubt, substantially affect Love’s day-to-day ac tivities. It will deprive him of the easiest way to pay his bills, check the weather, stay on top of world events, and keep in touch with Mends. It will also prevent him from using the Internet to trade child pornography. These are all factors district courts should weigh in considering restrictions on Internet access as conditions of supervised release. Given the alternatives of remote monitoring of an individual’s Internet usage and unannounced examinations of his computers, an Internet ban subject to Probation Office approval may in some cases impose a “greater deprivation of liberty than is reasonably necessary” to deter illegal conduct and protect the public. 18 U.S.C. § 3583(d)(2); see, e.g., United States v. Perazza-Mercado, 553 F.3d 65, 69-74 (1st Cir.2009); United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005); United States v. Holm, 326 F.3d 872, 877-79 (7th Cir.2003); United States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir.2002); United States v. White, 244 F.3d 1199, 1205-07 (10th Cir.2001). But not here. In Love’s case, this restriction is eminently reasonable. On this record, the condition is properly tailored to the circumstances of the offense and Love’s background, and it is reasonably necessary to deter future misconduct and to protect children. Consensus is emerging among our sister circuits that Internet bans, while perhaps unreasonably broad for defendants who possess or distribute child pornography, may be appropriate for those who use the Internet to “initiate or facilitate the victimization of children.” Holm, 326 F.3d at 878; see United States v. Thielemann, 575 F.3d 265, 278 (3d Cir.2009); United States v. Johnson, 446 F.3d 272, 283 (2d Cir.2006); United States v. Boston, 494 F.3d 660, 668 (8th Cir.2007); United States v. Paul, 274 F.3d 155, 169 (5th Cir.2001). The distinction is grounded in the simple proposition that when a defendant has used the Internet to solicit sex with minors, “the hazard presented by recidivism” is greater than when" }, { "docid": "14708764", "title": "", "text": "recidivism” was “directly relevant” to the need to protect the public and other § 3553(a) factors). The government suggests that because Burroughs’s contact with minors will be restricted after his release from prison, “the Internet is a likely avenue for obtaining the access he will not otherwise have” should he “choose to resume the behavior that resulted in his convictions.” Appellee’s Br. at 30. This is nothing but post hoc conjecture. The district court did not find Burroughs, a first-time offender, likely to recidivate let alone use a computer in doing so. Indeed, in explaining its decision to sentence Burroughs to 192 months’ imprisonment, the court mentioned nearly every § 3553(a) factor but the need to protect the public. See Sentencing Hr’g Tr. at 28-30. Because the court did not find Burroughs likely to return to his illegal course of conduct and did not explain why it deemed the computer restrictions appropriate, we have no reason to think the court shared the government’s speculation. The government finally suggests that the computer restrictions will provide Burroughs with needed correctional treatment under 18 U.S.C. § 3553(a)(2)(D). Making passing reference to this factor, the government refers us to United States v. Johnson, which states that “[r]estrictions on Internet use may serve several sentencing objectives, chiefly therapy and rehabilitation, as well as the welfare of the community (by keeping an offender away from an instrumentality of his offenses).” 446 F.3d 272, 281 (2d Cir.2006). In affirming an Internet ban for a defendant who repeatedly used the Internet to lure minors for sex, see id. at 274, the Johnson court explained that an Internet restriction would “serve[] as an external control to predatory Internet behavior, standing in for [his] deficient internal controls,” id. at 281-82. But Burroughs, unlike Johnson, did not use the Internet as an instrument of his offense. There is no reason to think that restricting his computer use would have any therapeutic value. Having determined that the Internet monitoring and log-keeping conditions are not reasonably related to the statutory factors, we ask whether the district court’s error was plain. The government first" }, { "docid": "23421002", "title": "", "text": "in the case.” . If the defendant knew that the victim was a vulnerable victim, a two-level adjustment pursuant to U.S.S.G. § 3A1.1(b)(1) applies. . The record is not explicit about whether the court considered these additional incidents in determining the appropriate victim enhancement. At sentencing, however, the court stated that \"[i]t is reasonable to say that the defendant knew that the victim, as well as those kids who are with her and under his supervision, were vulnerable individuals; and, therefore, a two-level increase is warranted under Guideline section 2A21.1(1)(b)(1).” (emphasis added). . Because Perazza-Mercado was not sentenced in accordance with the plea agreement, the government concedes that the waiver of appeal is inapplicable. . At sentencing, the court described these limitations on defendant’s interactions with children as follows: The defendant will also refrain from engaging in any specified occupation, business, or profession bearing a reasonable direct relationship or contact with the supervision of minors, or engage in any such specified occupation, business, or profession, in the same degree and in the same context in which he was engaged in this case. Specif ically, he will not be allowed to work with children, in other words.... The defendant will not reside or loiter within 100 feet of school yards, play yards, arcades, or other places primarily used by children under the age of 17. . The impact of the restriction on Perazza-Mercado’s wife was not addressed by the parties in their briefs or at argument, and we therefore do not consider it. . In invoking those goals of supervised release, the government cites United States v. Johnson, 446 F.3d 272, 281 (2d Cir.2006), for the proposition that a restriction on internet use will keep an offender away from an instrumentality of his offenses. As we have explained, there is no evidence in this case that the internet was in any way an instrumentality of Perazza-Mercado’s offense. . Other circuit court- decisions have gone even further and suggested that severe restrictions on a defendant’s internet access are invalid even if the defendant had previously used the internet for certain kinds of" }, { "docid": "22202247", "title": "", "text": "(5th Cir.2006) (citing U.S. Sentencing Guidelines Manual § 5D 1.2(b) (2009)). . United States v. Daniels, 541 F.3d 915, 922-24 (9th Cir.2008) (citing U.S. Sentencing Guidelines Manual. § 5D 1.2(b) (2009)). . United States v. Heckman, 592 F.3d 400, 408 (3d Cir.2010); United States v. Johnson, 446 F.3d 272, 282 (2d Cir.2006). . Heckman, 592 F.3d at 402. . Id. at 408-09. . Johnson, 446 F.3d at 282-83. . 645 F.3d 191, 200 (3d Cir.2011). . Id. . Id. . But cf. United States v. Perazza-Mercado, 553 F.3d 65, 73-74 (1st Cir.2009) (concluding that it may be appropriate for a defendant sentenced to 46 months of incarceration, whose sex offense with a child did not involve Internet use to have, \"a targeted limitation on internet use” during supervised release and discussing various court decisions and articles that have surveyed the technology available for monitoring computer usage) (citing United States v. Lifshitz, 369 F.3d 173, 191-93 (2d Cir.2004); United States v. Holm, 326 F.3d 872, 879 (7th Cir.2003); United States v. White, 244 F.3d 1199, 1206 (10th Cir.2001); Frank E. Correll Jr., \"You Fall into Scylla in Seeking to Avoid Charybdis\": The Second Circuit’s Pragmatic Approach to Supervised Release for Sex Offenders, 49 Wm. & Mary L. Rev. 681, 682-702 (2007); Dane C. Miller et al.. Conditions of Supervision that Limit an Offenders's Access to Computers and Internet Services: Recent Cases and Emerging Technology, 42 Crim. L. Bull., July-Aug. 2006, at 3; Brian K. Payne & Matthew DeMichele, Warning: Sex Offenders Need to be Supervised in the Community, 72 Fed. Probation, June 2008, at 37; Stephen Brake & Jim Tanner, Determining The Need for Internet Monitoring of Sex Offenders, http ://www.kbsolutions. com/ MonitoringNeed.pdf (last visited Nov. 25, 2008); Jim Tanner, Rethinking Computer Management of Sex Offenders Under Community Supervision, http://www.kbsolutions.com/ rcm.pdf (2007)). . See United States v. Love, 593 F.3d 1, 12 (D.C.Cir.2010) (upholding a similar restriction while noting that the \"term of supervised release will not begin any time soon,” that there may be changes in technology, and therefore that “[a] broad Internet prohibition, which the Probation Office will tailor" }, { "docid": "23421004", "title": "", "text": "illegal activity. See, e.g., United States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir.2002); United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005); United States v. Holm, 326 F.3d 872, 878 (7th Cir.2003). . Although the district court did not explain its basis for differentiating between defendant's use of the internet inside and outside the home, it may have believed that he would be less likely to engage in illegal conduct in a public place than from the privacy of his own residence. If that was indeed the court’s rationale, we think that this distinction does not accurately reflect all of the possibilities for internet use outside of the home which would duplicate many of the privacy protections of home use. . See also McKune v. Lile, 536 U.S. 24, 33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). . See generally Correll, Jr., supra, pp. 682-702; Dane C. Miller et al., Conditions of Supervision that Limit an Offender’s Access to Computers and Internet Services: Recent Cases and Emerging Technology, 42 No. 4 Crim. L. Bull. 3 (July Aug.2006). . Perazza-Mercado makes a passing reference in his brief to the absence of advance notice that the court was contemplating a ban on pornography. In York, we suggested that if a defendant could not have reasonably anticipated the special conditions imposed by the court, we may review a forfeited objection for abuse of discretion rather than plain error. 357 F.3d at 19. We need not consider this issue, however, because the appellant concedes that plain error applies. .To the contrary, as part of his objections to the PSR, appellant submitted the report of Dr. Jose R. Pando, a clinical psychologist. Ironically, this evaluation contained the only mention of pornographic material in the entire record. Perazza-Mercado had reported to Dr. Pando that \"[djuring his late adolescence and college years some of his friends lent him some adult movies, but he never developed a taste or any sort of habit for these kinds of activities.” Certainly, the court was entitled to make a judgment on the appropriate weight to give this report. We" }, { "docid": "23420986", "title": "", "text": "321 F.3d 1084, 1093 (11th Cir.2003) (quoting United States v. Walser, 275 F.3d 981, 988 (10th Cir.2001)). See also Brown, 235 F.3d at 4 (“[T]he [federal sentencing] guidelines contemplate ... that the sentencing court will tailor supervised release conditions to fit the circumstances of the offense and the characteristics of the offender.”) Although the internet did not play a role in the sexual misconduct which was the basis for his conviction, we must also consider Perazza-Mercado’s documented propensity for inappropriate behavior towards young girls. The personal characteristics of the defendant, even though they do not reflect any history of computer misuse, could justify a targeted limitation on internet use involving certain kinds of chat rooms or any sites involving children, especially in light of research suggesting that convicted sex offenders are likely to reoffend. See Roe v. Marcotte, 193 F.3d 72, 82 (2d Cir. 1999) (noting that studies indicated a high rate of recidivism among sexual offenders). Because of this concern, and the nature of his prior conduct, other conditions of Perazza-Mercado’s supervised release forbid him from working with children in a professional capacity and residing or loitering near areas which are frequented by groups of children. See supra note 7. We can imagine, and modern technology permits, an internet prohibition which would essentially replicate these real-world limitations. As many of our sister circuits have recognized, advances in technology offer courts the tools and flexibility to “fashion precise restrictions” that would protect the public as contemplated by § 3553 “and at the same time reflect the realities of [defendant]^ rehabilitation prospects.” Holm, 326 F.3d at 879. See, e.g., United States v. White, 244 F.3d 1199, 1206 (10th Cir.2001) (describing technologies which would limit defendant’s “use of the Internet to obtain child pornography or other sexually explicit behavior”). In particular, the Second Circuit has examined in some detail the various technologies available to monitor the computer usage of sex offenders. See United States v. Lifshitz, 369 F.3d 173, 191-93 (2d Cir. 2004). After a “brief survey of methods of monitoring,” the court noted that “even the varieties of products and techniques" }, { "docid": "23420982", "title": "", "text": "educational or vocational training ... and other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(b)(1)(D). We recognize that the district court’s prohibition on any access to the internet at home is not a total ban on appellant’s use of the internet. Thus, under the condition imposed by the district court, Peraz-za-Mercado could use the internet in a library, a coffee shop, or at the home of a friend or neighbor. Most importantly, the condition, as written, would permit Peraz-za-Mercado to use the internet in an office setting, thereby enabling him to take a job that requires internet use. Certainly, the freedom to use the internet in a professional environment might lessen the negative impact the condition would otherwise have on Perazza-Mereado’s educational and vocational pursuits. However, if the district court had concluded that appellant’s internet use would facilitate his unlawful sexual contact with a minor, allowing him unlimited access outside the home seems inconsistent with that concern. In other words, the district court’s failure to impose any restriction on Perazza-Merca-do’s non-residential internet usage undermines the rationale for ordering a complete ban on his use of the internet at home. Moreover, we must be cognizant of the importance of the internet in today’s world. An undue restriction on internet use “renders modern life — in which, for example, the government strongly encourages taxpayers to file their returns electronically, where more and more commerce is conducted on-line, and where vast amounts of government information are communicated via website — exceptionally difficult.” United States v. Holm, 326 F.3d 872, 878 (7th Cir.2003); see also United States v. Voelker, 489 F.3d 139, 145 (3d Cir.2007) (“The ubiquitous presence of the internet and the all-encompassing nature of the information it contains are too obvious to require extensive citation or discussion.”); United States v. Peterson, 248 F.3d 79, 83 (2d Cir.2001) (“Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering.”). In addition, there are many legal activities on the internet that are not easily conducted in public. For example, online banking or managing medical records" }, { "docid": "23420983", "title": "", "text": "usage undermines the rationale for ordering a complete ban on his use of the internet at home. Moreover, we must be cognizant of the importance of the internet in today’s world. An undue restriction on internet use “renders modern life — in which, for example, the government strongly encourages taxpayers to file their returns electronically, where more and more commerce is conducted on-line, and where vast amounts of government information are communicated via website — exceptionally difficult.” United States v. Holm, 326 F.3d 872, 878 (7th Cir.2003); see also United States v. Voelker, 489 F.3d 139, 145 (3d Cir.2007) (“The ubiquitous presence of the internet and the all-encompassing nature of the information it contains are too obvious to require extensive citation or discussion.”); United States v. Peterson, 248 F.3d 79, 83 (2d Cir.2001) (“Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering.”). In addition, there are many legal activities on the internet that are not easily conducted in public. For example, online banking or managing medical records are potentially important activities that one might not wish to conduct in public because of a legitimate interest in keeping the information private. In light of the “ubiquitous presence” of the internet and the “all-encompassing nature of the information it contains,” Voelker, 489 F.3d at 145, a total ban on Perazza-Mercado’s internet use at home seems inconsistent with the vocational and educational goals of supervised release. Although appellant’s actions were indisputably abhorrent, the restriction on his internet use must still meet the statutory requirements. Prohibiting Perazza-Mer-cado from, logging onto the internet from home, without a substantial justification for doing so, would be an excessive deprivation of liberty if it prevented him from engaging in the kind of educational and vocational training required for the transition from his prior employment as a teacher into a new and appropriate career. For example, if he is occupied during the day interviewing for jobs, he may need to look for new job postings early in the morning or late at night, when he may not be able to easily" }, { "docid": "23420985", "title": "", "text": "access the internet from public spaces. Our concerns about the unqualified prohibition of home internet use are even more salient because the conditions of Perazza-Mercado’s supervised release will only take effect in a few years, after the completion of his prison sentence. The importance of the internet in modern life has steadily increased over time, and we have no reason to believe that this trend will end. Therefore, given the nature of the offense and the characteristics of the defendant, we conclude that requiring Perazza-Mercado to leave his home in order to take advantage of many of the vocational and educational opportunities offered by the internet is a greater deprivation of his liberty than is reasonably necessary for his rehabilitation. Nevertheless, our concern regarding a categorical residential internet ban does not imply that Perazza-Mercado is entitled to unlimited internet access, particularly if a “relatively narrowly-tailored condition” would “readily accomplish!] the goal of restricting use of the Internet and more delicately balance!] the protection of the public with the goals of sentencing.” United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir.2003) (quoting United States v. Walser, 275 F.3d 981, 988 (10th Cir.2001)). See also Brown, 235 F.3d at 4 (“[T]he [federal sentencing] guidelines contemplate ... that the sentencing court will tailor supervised release conditions to fit the circumstances of the offense and the characteristics of the offender.”) Although the internet did not play a role in the sexual misconduct which was the basis for his conviction, we must also consider Perazza-Mercado’s documented propensity for inappropriate behavior towards young girls. The personal characteristics of the defendant, even though they do not reflect any history of computer misuse, could justify a targeted limitation on internet use involving certain kinds of chat rooms or any sites involving children, especially in light of research suggesting that convicted sex offenders are likely to reoffend. See Roe v. Marcotte, 193 F.3d 72, 82 (2d Cir. 1999) (noting that studies indicated a high rate of recidivism among sexual offenders). Because of this concern, and the nature of his prior conduct, other conditions of Perazza-Mercado’s supervised release forbid" }, { "docid": "20453643", "title": "", "text": "States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir.2002); United States v. White, 244 F.3d 1199, 1205-07 (10th Cir.2001). But not here. In Love’s case, this restriction is eminently reasonable. On this record, the condition is properly tailored to the circumstances of the offense and Love’s background, and it is reasonably necessary to deter future misconduct and to protect children. Consensus is emerging among our sister circuits that Internet bans, while perhaps unreasonably broad for defendants who possess or distribute child pornography, may be appropriate for those who use the Internet to “initiate or facilitate the victimization of children.” Holm, 326 F.3d at 878; see United States v. Thielemann, 575 F.3d 265, 278 (3d Cir.2009); United States v. Johnson, 446 F.3d 272, 283 (2d Cir.2006); United States v. Boston, 494 F.3d 660, 668 (8th Cir.2007); United States v. Paul, 274 F.3d 155, 169 (5th Cir.2001). The distinction is grounded in the simple proposition that when a defendant has used the Internet to solicit sex with minors, “the hazard presented by recidivism” is greater than when the defendant has traded child pornography. Johnson, 446 F.3d at 283. The district court found that Love not only distributed child pornography but that he also solicited sex with Palchak’s fictitious daughter. The court concluded that Love would have had sex with her if given the opportunity, Tr. 18, 59, 60, and he would likely repeat this conduct upon release if he thought he would not be caught, Tr. 62. In sum, the hazard presented by Love’s potential recidivism is substantial, and his inclination towards reoffending is great. Making Love’s Internet use subject to Probation Office approval is therefore appropriately tailored to the harm that may result should he resume his previous course of conduct after release from prison. Moreover, the continuing development of the Internet makes it reasonable for the district court to give the Probation Office broad authority to determine the scope of Love’s permissible Internet use. Love’s term of supervised release will not begin any time soon. Sentencing courts can predict neither the new ways in which child pornography will then be" }, { "docid": "23421003", "title": "", "text": "which he was engaged in this case. Specif ically, he will not be allowed to work with children, in other words.... The defendant will not reside or loiter within 100 feet of school yards, play yards, arcades, or other places primarily used by children under the age of 17. . The impact of the restriction on Perazza-Mercado’s wife was not addressed by the parties in their briefs or at argument, and we therefore do not consider it. . In invoking those goals of supervised release, the government cites United States v. Johnson, 446 F.3d 272, 281 (2d Cir.2006), for the proposition that a restriction on internet use will keep an offender away from an instrumentality of his offenses. As we have explained, there is no evidence in this case that the internet was in any way an instrumentality of Perazza-Mercado’s offense. . Other circuit court- decisions have gone even further and suggested that severe restrictions on a defendant’s internet access are invalid even if the defendant had previously used the internet for certain kinds of illegal activity. See, e.g., United States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir.2002); United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005); United States v. Holm, 326 F.3d 872, 878 (7th Cir.2003). . Although the district court did not explain its basis for differentiating between defendant's use of the internet inside and outside the home, it may have believed that he would be less likely to engage in illegal conduct in a public place than from the privacy of his own residence. If that was indeed the court’s rationale, we think that this distinction does not accurately reflect all of the possibilities for internet use outside of the home which would duplicate many of the privacy protections of home use. . See also McKune v. Lile, 536 U.S. 24, 33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). . See generally Correll, Jr., supra, pp. 682-702; Dane C. Miller et al., Conditions of Supervision that Limit an Offender’s Access to Computers and Internet Services: Recent Cases and Emerging Technology, 42 No. 4 Crim. L." }, { "docid": "23321073", "title": "", "text": "Sofsky, the likeliest consequence if a less restrictive measure should fail would be that the offender would download and distribute child pornography. Serious as those offenses are, the direct harm to children was inflicted previously, when the pornographic images were made, and the lesser harm caused by trafficking can be largely remedied afterward, by destroying copies of the material and returning the offender to prison. In Johnson’s case, the likeliest consequence if a less restrictive measure should fail is that Johnson could use the Internet to locate children and lure them to sexual abuse. The perfectly obvious ground for distinguishing Sofsky from Johnson’s case is that here the failure of lesser measures risks direct harm to children that may be devastating and irremediable. As the Seventh Circuit observed in United States v. Holm, 326 F.3d 872, 878 (7th Cir.2003), courts in similar contexts have recognized the importance of considering whether a defendant made “outbound use of the Internet to initiate and facilitate victimization of children.” Compare United States v. Paul, 274 F.3d 155, 169 (5th Cir.2001) (upholding prohibition where the defendant had used the Internet to provide advice to others on how to find and obtain access to “young friends”), and United States v. Crandon, 173 F.3d 122, 127-28 (3rd Cir.1999) (upholding prohibition where the defendant had used the Internet to “develop an illegal sexual relationship with a young girl over a period of several months”), with United States v. Freeman, 316 F.3d 386, 391-92 (3rd Cir.2003) (vacating prohibition where the defendant was convicted of receipt of child pornography, and noting that “the defendant in Crandon [by comparison] had used the Internet to contact young children and solicit inappropriate sexual contact with them. Such use of the Internet is harmful to the victims contacted and more difficult to trace than simply using the Internet to view pornographic web sites”), and Holm, 326 F.3d at 874, 879 (vacating prohibition on use of any computer with Internet capability by a defendant convicted of possession of child pornography). We therefore affirm the imposition of the absolute Internet ban as it has been crafted" }, { "docid": "22202242", "title": "", "text": "895 (D.C.Cir.2006) (observing \"[t]his circuit has yet to decide whether individuals convicted of sex crimes may have their Internet usage conditioned on Probation Office approval, and our sister circuits are divided on the issue.\") (comparing United States v. Rearden, 349 F.3d 608, 621 (9th Cir.2003), and United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir.2003), with Crume, 422 F.3d at 733, and United States v. Sofslcy, 287 F.3d 122, 126 (2d Cir.2002)). . See United States v. Holm, 326 F.3d 872, 877 (7th Cir.2003). . Id. at 878. . 274 F.3d 155, 169-70 (5th Cir.2001). . 569 F.3d 220, 224, 234 (5th Cir.2009) (affirming a special condition that provided \"[t]he defendant shall not possess or utilize a computer or internet connection device during the term of supervised release.\"). . Crume, 422 F.3d at 733 (holding that one consideration in prior decisions upholding restrictions on Internet access and computer use \"was that there was evidence that the defendant used his computer and the Internet to do more than merely possess child pornography” and vacating restrictions that prohibited internet access unless prior written consent from the probation officer was obtained) (citing United States v. Ristine, 335 F.3d 692, 696 (8th Cir.2003), United States v. Fields, 324 F.3d 1025, 1027 (8th Cir.2003)); see also United States v. Freeman, 316 F.3d 386, 391-92 (3d Cir.2003); United States v. Sofsky, 287 F.3d 122, 126 (2d Cir.2002). . United States v. Johnson, 446 F.3d 272, 274-75, 281-83 (2d Cir.2006) (upholding ban similar to Miller's because the defendant was a sophisticated user of computers who had sex with two minors and was on his way to have sex with a third when apprehended and distinguishing Sofsky, 287 F.3d 122); see also United States v. Bender, 566 F.3d 748, 751-52 (8th Cir.2009) (upholding restriction on use of a computer and online access without the prior approval of a probation officer because the defendant “arranged on-line to meet a woman for sexual relations, and pursued a sexual relationship despite discovering that she was a minor”); Crume, 422 F.3d at 733 (noting that \" '[i]n cases where defendants used" }, { "docid": "23321069", "title": "", "text": "this Court has preserved at least minimal, government-monitored Internet access for persons on supervised release. a. Sentencing objective relevance As already discussed, a condition of supervised release must be related to sentencing purposes and must impose no greater restraint on liberty than is reasonably necessary to accomplish sentencing objectives. United States v. Germosen, 139 F.3d 120, 131 (2d Cir.1998). Restrictions on Internet use may serve several sentencing objectives, chiefly therapy and rehabilitation, as well as the welfare of the community (by keeping an offender away from an instrumentality of his offenses). See generally Lifshitz, 369 F.3d at 189-90 (listing deterrence and rehabilitation as two benefits of Internet monitoring). The Internet ban imposed on Johnson serves these sentencing objectives, confronts Johnson with the need to take his treatment seriously, and selves as an external control to predatory Internet be havior, standing in for Johnson’s deficient internal controls. Treatment officials suggest that such external checks often become internalized, promoting healthy behavior in the long term. The question is whether a lesser restraint would do. b. Minimum Deprivation of Liberty Several times this Court has vacated absolute bans on Internet access because narrower restraints were equally suited to achieving sentencing goals. The district court distinguished those cases on the ground that nothing less will effectively curb Johnson’s propensities and protect the community. On this record, that ruling is sound. In the case of an offender who had downloaded and disseminated child pornography through the Internet, an outright ban was held to be more restrictive than needed to serve the sentencing goals of rehabilitation and incapacitation because a combination of monitoring and unannounced inspections would exert the control of an Internet ban while allowing an offender access to the Internet for legitimate purposes. See United States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir.2002); see also United States v. Cabot, 325 F.3d 384, 386 (2d Cir.2003) (vacating an Internet ban after the government conceded that it could not stand under Sofsky); United States v. Peterson, 248 F.3d 79, 82-84 (2d Cir.2001) (vacating a computer and Internet ban, reasoning that, inter alia, “[t]here [was] no" }, { "docid": "23420978", "title": "", "text": "v. Brown, 235 F.3d 2, 6 (1st Cir.2000)) (internal quotation marks omitted)). The government argues that the internet condition, while perhaps not connected to Perazza-Mereado’s specific offense of conviction, is related to two of the goals of supervised release: namely, protecting the public from further crimes by the defendant and his rehabilitation. The government correctly notes both that the Guidelines do not require a direct relationship between the offense and the condition, and also that we must focus on whether the condition is “reasonably related” to one or more of the goals of supervised release. However, the government does not fully acknowledge that the Guidelines also require us to consider whether the challenged condition is reasonably related to the “history and characteristics of the defendant” and whether the condition deprives Perazza-Mercado of more liberty than is reasonably necessary to achieve the goals that the statute describes. 18 U.S.C. § 3583(d). With these requirements in mind, our sister circuits have upheld broad restrictions on internet access as a condition of supervised release where (1) the defendant used the internet in the underlying offense; (2) the defendant had a history of improperly using the internet to engage in illegal conduct; or (3) particular and identifiable characteristics of the defendant suggested that such a restriction was warranted. See, e.g., United States v. Boston, 494 F.3d 660, 668 (8th Cir.2007) (finding that “prohibiting [the defendant] from accessing or possessing a computer without written approval of his probation officer[ ] did not constitute an abuse of discretion because it was not absolute” and because of evidence that defendant had used computers to print out images of child pornography); United States v. Johnson, 446 F.3d 272, 282-83 (2d Cir.2006) (upholding an absolute ban on internet use where defendant’s sophisticated computer skills would enable him to circumvent monitoring software, allowing him to continue the offense of having sexually explicit' conversations with minors and luring minors into having sex with him); United States v. Paul, 274 F.3d 155, 169 (5th Cir.2001) (affirming total ban on defendant’s internet and computer use where he had previously used the internet to" }, { "docid": "22340920", "title": "", "text": "for valid purposes by obtaining his probation officer’s prior permission. As the Tenth Circuit observed in Walser, this relatively narrowly-tailored condition “readily accomplishes the goal of restricting use of the Internet and more delicately balances the protection of the public with the goals of sentencing.” Walser, 275 F.3d at 988. We acknowledge that two other circuits have embraced a holding opposite from the one we adopt today. See United States v. Freeman, 316 F.3d 386 (3d Cir.2003); United States v. Sofsky, 287 F.3d 122 (2d Cir.2002). In Sofsky, the Second Circuit held a restriction on computer and Internet use was invalid even where there was an exception if the offender received his probation officer’s approval. Sofsky, 287 F.3d at 126. In Freeman, the Third Circuit relied on Sofsky in reaching the same conclusion. Freeman, 316 F.3d 386. Although we appreciate these courts’ concerns that restrictions on Internet usage may effect some deprivation of liberty, we agree with those courts holding that a limited restriction on a sex offender’s Internet use is a necessary and reasonable condition of supervised release. IV. CONCLUSION The district court did not err in ordering Appellant to submit to polygraph examina tions as part of his mental health treatment on supervised release. This condition is reasonably related to his offense and history, satisfies the statutory sentencing goals set forth in 18 U.S.C. § 3553(a), and does not unduly infringe on Appellant’s liberties. Moreover, although the challenge to the polygraph exam is generally ripe for our review, certain of Appellant’s arguments against polygraph testing lack merit because they depend on future contingency and speculation. If those contingencies come to fruition, Appellant may challenge the condition at the appropriate time. Finally, we hold the district court did not abuse its discretion by imposing a limited restriction on Appellant’s Internet use during the period of supervised release. AFFIRMED. . Appellant pled guilty without the benefit of a written plea agreement. . In addition to these four special conditions of supervised release, Appellant was ordered not to possess materials depicting children in the nude or in sexually explicit positions, and" }, { "docid": "19490168", "title": "", "text": "\"no indication that Peterson's past incest offense had any connection to computers or to the Internet.\" Id . We thus determined that the facts of Peterson's case did not warrant \"so broad a prohibition\" on his Internet usage. Id. Similarly, in United States v. Sofsky , in 2002, we held that a total Internet ban inflicted a greater deprivation of liberty than was reasonably necessary in the case of a defendant who had illegally downloaded child pornography. 287 F.3d 122, 126 (2d Cir. 2002). Like the Court in Packingham , we were concerned that such a ban \"prevents use of e-mail ... [and] other common-place computer uses such as doing any research, getting a weather forecast, or reading a newspaper online\"-activities that raise no obvious risk of criminal activity. Id . (internal quotation marks omitted). Our sister circuits have similarly rejected absolute Internet bans even where the defendant had used the computer for ill in his crime of conviction. See, e.g. , United States v. LaCoste , 821 F.3d 1187, 1192 (9th Cir. 2016) (rejecting Internet ban where defendant conspired to commit securities fraud); United States v. Wiedower , 634 F.3d 490, 495 (8th Cir. 2011) (rejecting Internet ban where defendant was convicted of possessing child pornography); United States v. Perazza-Mercado , 553 F.3d 65, 72-74 (1st Cir. 2009) (rejecting Internet ban in the home where crime of conviction involved defendant knowingly engaging in sexual contact with a female under the age of twelve); United States v. Freeman , 316 F.3d 386, 391-92 (3d Cir. 2003) (rejecting Internet ban where defendant was convicted of receiving and possessing child pornography); United States v. Holm , 326 F.3d 872, 877 (7th Cir. 2003) (rejecting Internet ban where defendant was convicted of possessing child pornography). In light of our precedent, and as emphasized by Packingham 's recognition of a First Amendment right to access certain social networking websites, the imposition of a total Internet ban as a condition of supervised release inflicts a severe deprivation of liberty. In only highly unusual circumstances will a total Internet ban imposed as a condition of supervised" }, { "docid": "22687002", "title": "", "text": "Tome’s case involved his first being put on supervised release that allowed him limited access to the Internet for employment-related reasons and required him to disclose to his probation officer all non-employment-related Internet use. Tome promptly violated those conditions multiple times. He not only failed to disclose that he accessed the Internet for personal reasons, but also used the Internet to contact by e-mail six sex offenders, several of whom also had child pornography convictions. Tome has shown his unwillingness to conform his behavior to more-lenient restrictions. Although Tome argues the year-long Internet ban would prevent him from submitting on-line job applications and performing jobs that require use of the Internet, Tome does not state which jobs he might be qualified for or whether any of those potential jobs would require him to use the Internet. Tome has not shown a day-to-day vocational need for the Internet. Nor does Tome articulate how his expressive activities will be adversely affected by the Internet ban. We acknowledge that Tome relies on cases from other circuits concluding in certain circumstances that an Internet access ban during a term of supervised release is impermissible. But these cases are materially different because they involve a lengthier Internet ban, do not specify the duration of the ban, involve criminal conduct that was unrelated to the Internet, or do not involve a prior supervised release violation. See, e.g., United States v. Heckman, 592 F.3d 400, 403, 407 (3d Cir.2010) (lifetime Internet ban and no prior supervised release violation); United States v. Holm, 326 F.3d 872, 874, 877-78 (7th Cir. 2003) (length of supervised release not specified, no prior supervised release violation, and defendant had a 30-year history of working in computer telecommunications and intended to be so employed dur ing his supervised release); United States v. Sofsky, 287 F.3d 122, 124 (2d Cir.2002) (3-year Internet ban and no prior supervised release violation); United States v. Peterson, 248 F.3d 79, 81 (2d Cir.2001) (5-year Internet ban, no prior supervised release violation, and defendant’s underlying conviction was for bank larceny and did not involve computers or the Internet); United" } ]

[ { "docid": "1456457", "title": "", "text": "Alaska, 604 P.2d 1068 (Alaska 1979), the Supreme Court of Alaska reversed the conviction of an Athabascan Indian who had been found guilty of violating game laws when he killed a moose for a funeral feast, or pot-latch. The court found that “[t]he funeral potlatch is the most important institution in Athabascan life” and that “[fjood is the cornerstone of the ritual.” 604 P.2d at 1071. “While moose itself is not sacred, it is needed for proper observance of a sacred ritual which must take place soon after death occurs. Moose is the centerpiece of the most important ritual in Athabascan life and is the equivalent of sacred symbols in other religions.” Id. at 1073 (footnotes deleted). In People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964), the hallucinogenic drug peyote was found to play a central role in the ceremony and practice of the Native American Church, an organization of American Indians. The “meeting” ceremony, involving the use of peyote, was found to comprise the cornerstone of the religion. Peyote was found to be more than a sacrament; it was itself an object of worship. “[Pjrohibition of the use of peyote results in a virtual inhibition of the practice of defendants’ religion, To forbid the use of peyote is to remove the theological heart of Peyotism.” 40 Cal. Rptr. at 73-74, 394 P.2d at 817-18. Examination of the plaintiffs’ affidavits discloses no such claim of centrality or indispensability of the Little Tennessee Valley to Cherokee religious observances. Granting as we do that the individual plaintiffs sincerely adhere to a religion which honors ancestors and draws its spiritual strength from feelings of kinship with nature, they have fallen short of demonstrating that worship at the particular geographic location in question is inseparable from the way of life (Yoder), the cornerstone of their religious observance (Frank), or plays the central role in their religious ceremonies and practices (Woody). Rather, the affidavits disclose that medicines are obtainable there which may be found at higher elevations in other locations, that it is believed by some that the knowledge of" } ]

[ { "docid": "14630578", "title": "", "text": "until they complete and distribute studies demonstrating that such activities will not violate water quality standards of FWPCA. . Appellants’ Motion to Supplement the Record on Appeal with material not presented to the district court either before or after the court rendered its opinion is DENIED. BEEZER, Circuit Judge, dissenting in part: I concur in Parts II, III, and IV of Judge Canby's majority opinion. I also concur in Part V to the extent that it is based on the discussion in Parts II, III, and IV. Because I conclude that the plaintiffs have not established a first amendment violation, I cannot concur in Part I. To the extent that the majority upholds the permanent injunction against timber harvesting and road construction in the “high country,” I respectfully dissent. I Background This action involves the proposed development of the Blue Creek Unit of Six Rivers National Forest. The Blue Creek Unit consists of 76,500 acres of mountainous land in the northwestern corner of California. The northeastern comer of the Blue Creek Unit, which is referred to as “the high country,” is considered sacred by several Indian tribes. The district court described the Indian plaintiffs’ use of the high country as follows: Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century and probably much earlier. Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator.” Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make “preparatory medicine.” The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire" }, { "docid": "5069197", "title": "", "text": "to performing the “World Renewal” ceremonies, such as the White Deerskin and Jump Dances, which constitute the heart of the Northwest Indian religious belief system (Theo.Rpt. at 45-49). Finally, use of the high country in training young persons in the tribes in traditional religious beliefs and ceremonies is necessary to preserve such practices and to convey them to future generations (Tr. at 77). Degradation of the high country and impairment of such training would carry “a very real threat of undermining thé [tribal] communitpes] and religious practice[s] as they exist today.” Yoder, supra, 406 U.S. at 218, 92 S.Ct. at 1534. Communication with the “great creator” is possible in the high country because of the pristine environment and opportunity for solitude found there (Theo.Rpt. at 419-20). Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including “clear-cutting,” would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service’s own study concluded that “[intrusions on the sanctity of the Blue Creek high country are * * * potentially destructive of the very core of Northwest [Indian] religious beliefs and practices” (Theo.Rpt. at 420). Upon careful analysis, it will be seen that prior cases involving Indian religious claims support the conclusion that the government actions proposed here burden the free exercise of plaintiffs’ religion. Unlike the present case, plaintiffs in Sequoyah did not claim that the area threatened with flooding played a central role in the practice of their religion, and in fact failed to demonstrate that there had been significant past use of the area for religious purposes. 620 F.2d at 1163-64. Likewise, plaintiffs in Hopi failed to show that the 777 acre parcel planned for development within the 75,000 acre San Francisco Peaks region was “central or indispensable to their religion. 8 ILR at 3075. In Crow v. Gullet, there was no claim that the challenged actions did more than possibly inconvenience Indian worshippers at Bear Butte by, for example, requiring campers to register with park officials. 541 F.Supp. at 791-93. Other cases directly support the conclusion that" }, { "docid": "14630581", "title": "", "text": "action to enjoin the Forest Service from beginning those projects. On May 24, 1983, the district court entered a permanent injunction against the Forest Service. The relevant portions of the injunction are as follows: IT IS HEREBY ORDERED that defendants are permanently enjoined from constructing the Chimney Rock Section of the G-0 road and/or any alternative route for that Section which would traverse the high country____ IT IS FURTHER HEREBY ORDERED that defendants are permanently enjoined from engaging in commercial timber harvesting and/or from constructing any logging roads in the high country ... pursuant to the 1981 Implementation Plan ... or any other land management plan. 565 F.Supp. at 606. II Applicable Law The Indian plaintiffs are attempting to use the free exercise clause to bar the development of public lands. Such attempts have raised difficult problems for first amendment theory. See Stambor, Manifest Destiny and American Indian Religious Freedom: Sequoyah, Badoni, and the Drowned Gods, 10 Am.Ind.L.Rev. 59 (1982); Note, Indian Religious Freedom and Governmental Development of Public Lands, 94 Yale L.J. 1447 (1985) [hereinafter cited as Note, Indian Religious Freedom]. These problems have been resolved through the adoption of a two-step analysis. First, the plaintiffs must show that the area at issue is central and indispensable to their religious practices and that the threatened activity would seriously interfere with or impair those practices. See Wilson v. Block, 708 F.2d 735, 742-44 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). Second, if the plaintiffs meet their burden, the government must show an overriding government interest that cannot be served through less restrictive alternatives. See id. at 740; Badoni v. Higginson, 638 F.2d 172, 176-77 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). Four circuits have considered claims similar to those raised by the Indian plaintiffs in this case. In all four cases, the claims were rejected. In Sequoyah v. TVA, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980), the Cherokee tribe sought to enjoin the construction of the Tellico" }, { "docid": "14630554", "title": "", "text": "371, 78 L.Ed.2d 330 (1983). That the Indians use the Blue Creek high country area for religious purposes and consider the area sacred is not enough to characterize the contemplated Forest Service actions as a burden on free exercise rights. The Indians have to show that the area at issue is indispensable and central to their religious practices and beliefs, and that the proposed governmental actions would seriously interfere with or impair those religious practices. Wilson v. Block, 708 F.2d at 742-44; Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980); Crow v. Gullet, 541 F.Supp. 785, 792 (D.S.D.1982), aff'd, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983). The district court here found that [f]or generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the “great creator,” to perform rituals, and to prepare for specific religious and medicinal ceremonies. Such use of the high country is “central and indispensable” to the Indian plaintiffs’ religion____ Communication with the “great creator” is possible in the high country because of the pristine environment and opportunity for solitude found there. Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including “clear-cutting,” would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service’s own study concluded that “[intrusions on the sanctity of the Blue Creek high country are ... potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.” We agree with the district court that the proposed operations would interfere with the Indian plaintiffs’ free exercise rights. There is a great deal of evidence in the record that the high country is indispensable to a significant number of Indian healers and religious leaders as a place where they receive the “power” that permits them to fill the religious roles that are central to the traditional religions. There is abundant evidence that the unitary" }, { "docid": "14630585", "title": "", "text": "visiting the Bridge act “in a respectful and appreciative manner.” ... Were it otherwise, the Monument would become a government-managed religious shrine. Id. at 179 (citation omitted). The Eighth Circuit addressed a similar claim in Crow v. Gullet, 706 F.2d 856 (8th Cir.1983), aff'g 541 F.Supp. 785 (D.S.D.1982), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983). In Crow, two tribes challenged South Dakota’s management of a state park containing Bear Butte, an important religious site for the tribes. The tribes argued that (1) the development of the park had increased the number of tourists in the park, reducing the Butte’s spiritual value and impairing religious ceremonies; (2) the development of the park had restricted tribal access to the Butte; (3) their religious practices were impermissibly burdened by registration and permit requirements that restricted entry into the park; and (4) the state had failed to control the tourists, who disrupted the tribe’s religious practices. Id. at 858. Citing Badoni and Sequoyah, the district court rejected each argument. 541 F.Supp. at 791-93. The Eighth Circuit adopted the district court’s opinion. 706 F.2d at 858-59. The District of Columbia Circuit considered this issue in Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). In Wilson, the Navajo and Hopi tribes sought to enjoin development of ski resorts in the San Francisco Peaks in Arizona. The tribes asserted that development of the Peaks “would be a profane act, and an affront to the deities, and that, in consequence, the Peaks would lose their healing power and otherwise cease to benefit the tribes.” Id. at 740. The tribe also asserted that development would impair their ability to pray, to conduct ceremonies, and to gather sacred objects such as fir boughs. Id. The District of Columbia Circuit rejected the tribe’s claims. The court noted that the development of the Peaks would not cause the tribes to be denied access to any sacred areas. Id. at 744. The court also concluded that development would not prevent the tribes from engaging in any religious" }, { "docid": "14630552", "title": "", "text": "to take any position on whether the Road should be completed. See H.R. Rep. No. 98-40, 98th Cong., 1st Sess. 32; S.Rep. No. 98-582, 98th Cong., 2d Sess. 29; 130 Cong.Rec. No. 113, pp. 18-19 (H.Rep. Sept. 12, 1984) (Remarks of Cong. Seiber-ling). ISSUES On this appeal we address the following issues raised by the Forest Service: (1) Whether the district court erred in enjoining road construction and timbering in the high country of the Blue Creek Unit on the ground that such activity would impermissibly burden the Indian plaintiffs’ first amendment right to the free exercise of their religion; (2) Whether the district court erred in holding that the EISs prepared for the road and land management plans failed adequately to discuss the effects on water quality of the proposed actions; (3) Whether the district court erred in holding that Forest Service’s proposed actions would violate the Federal Water Pollution Control Act and state water quality standards. DISCUSSION I. First Amendment The first amendment prohibits governmental actions that burden an individual’s free exercise of religion unless those actions are necessary to fulfill a governmental interest of the highest order that cannot be met in a less restrictive manner. See Wisconsin v. Yoder, 406 U.S. 205, 214-15, 92 S.Ct. 1526, 1532-33, 32 L.Ed.2d 15 (1972); Sherbert v. Vemer, 374 U.S. 398, 403-09, 83 S.Ct. 1790, 1793-96, 10 L.Ed.2d 965 (1963). In this case the government challenges the district court’s conclusion that certain proposed Forest Service management decisions, if implemented, would impermissibly burden the Indian plaintiffs’ free exercise rights. Further, the government contends that even if its action would impose such a burden, it has demonstrated a governmental interest sufficient to override the Indians’ religious interests. A. Free Exercise Right To establish a constitutionally valid free exercise claim, the Indian plaintiffs have the initial burden of demonstrating that governmental actions create a burden on their rights. See School District of Abington Township v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963); Wilson v. Block, 708 F.2d 735, 740 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct." }, { "docid": "5069186", "title": "", "text": "Based upon the evidence presented at trial, the Court finds that the challenged Forest Service decisions violate (1) the First Amendment of the Constitution of the United States; (2) NEPA and the Wilder-. ness Act; (3) the Federal Water Pollution Control Act; (4) Indian water and fishing rights on the Hoopa Valley Indian Reservation, and defendants’ trust responsibility towards those rights; and (5) the Administrative Procedure Act. This memorandum constitutes the Court’s findings of fact and conclusions of law. I. The First Amendment In reviewing the nature of the religious beliefs involved in this case, it must be remembered that their unorthodox character is no basis for denial of the protection of rights guaranteed by the Free Exercise Clause. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981). Thus, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Id. The northeastern corner of the Blue Creek Unit is considered sacred land by members of the Yurok, Karok, and Tolowa Indian tribes. This region is known as the “high country.” Although the high country includes the highest mountain peaks in this corner of the Blue Creek Unit, such as Chimney Rock, Doctor Rock, and Peak 8, the area considered sacred encompasses an entire region rather than simply a group of individual sites (Def.Ex. G-K, Theodoratus Report (hereinafter “Theo.Rpt.”), at 419). The Indian plaintiffs and the State of California assert that either construction of Alternative D-4 (hereinafter the Chimney Rock Section) or implementation of the Management Plan would desecrate the high country in violation of the Indian plaintiffs’ rights under the Free Exercise Clause of the First Amendment. The Indian plaintiffs’ use of the high country for religious purposes is not in dispute. Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century (Trial Transcript (hereinafter “Tr.”) at 267-68) and probably much earlier (Theo.Rpt. at 230-73, 386). Members of these tribes currently make regular use of the high country for several religious purposes." }, { "docid": "14630586", "title": "", "text": "Eighth Circuit adopted the district court’s opinion. 706 F.2d at 858-59. The District of Columbia Circuit considered this issue in Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). In Wilson, the Navajo and Hopi tribes sought to enjoin development of ski resorts in the San Francisco Peaks in Arizona. The tribes asserted that development of the Peaks “would be a profane act, and an affront to the deities, and that, in consequence, the Peaks would lose their healing power and otherwise cease to benefit the tribes.” Id. at 740. The tribe also asserted that development would impair their ability to pray, to conduct ceremonies, and to gather sacred objects such as fir boughs. Id. The District of Columbia Circuit rejected the tribe’s claims. The court noted that the development of the Peaks would not cause the tribes to be denied access to any sacred areas. Id. at 744. The court also concluded that development would not prevent the tribes from engaging in any religious practices. Id. at 744. The district court was aware of the decisions in those circuits. Nevertheless, the district court found that the Forest Service had violated the first amendment. In doing so, the district court became the first federal court to enjoin the development of public lands on free exercise grounds. III The Construction of the G-0 Road The district court found that the construction of the G-0 Road violated the free exercise clause because it “would seriously damage the salient visual, aural, and environment qualities of the high country.” 565 F.Supp. at 594-95. The district court did not make specific findings regarding the effects of the construction of the road. Instead, the district court relied exclusively on the conclusions of a study prepared by Dr. Dorothea Theodoratus at the request of the Forest Service. Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest (1979) [hereinafter cited as Theodoratus Report ]. The study concluded that “intrusions on the sanctity of the Blue Creek high country are ... potentially destructive of the" }, { "docid": "5069196", "title": "", "text": "A Burden on the Free Exercise of Religion ' The first step in evaluating plaintiffs’ claim based upon their constitutional right to the free exercise of religion is to determine whether the challenged actions do burden that right. The evidence establishes that construction of the Chimney Rock Section and/or implementation of the Management Plan would seriously impair the Indian plaintiffs’ use of the high country for religious practices. For generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the “great creator,” to perform rituals, and to prepare for specific religious and medicinal ceremonies. Such use of the high country is “central and indispensable” to the Indian plaintiffs’ religion. See, e.g., Sequoyah, supra, 620 F.2d at 1164; Hopi, supra, 8 ILR at 3075. For the Yurok, Karok, and Tolowa peoples, the high country constitutes the center of the spiritual world. No other geographic areas or sites hold equivalent religious significance for these tribes. Further, use of the high country is essential to performing the “World Renewal” ceremonies, such as the White Deerskin and Jump Dances, which constitute the heart of the Northwest Indian religious belief system (Theo.Rpt. at 45-49). Finally, use of the high country in training young persons in the tribes in traditional religious beliefs and ceremonies is necessary to preserve such practices and to convey them to future generations (Tr. at 77). Degradation of the high country and impairment of such training would carry “a very real threat of undermining thé [tribal] communitpes] and religious practice[s] as they exist today.” Yoder, supra, 406 U.S. at 218, 92 S.Ct. at 1534. Communication with the “great creator” is possible in the high country because of the pristine environment and opportunity for solitude found there (Theo.Rpt. at 419-20). Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including “clear-cutting,” would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service’s own study concluded that “[intrusions on the sanctity of the Blue Creek high country are" }, { "docid": "14630553", "title": "", "text": "religion unless those actions are necessary to fulfill a governmental interest of the highest order that cannot be met in a less restrictive manner. See Wisconsin v. Yoder, 406 U.S. 205, 214-15, 92 S.Ct. 1526, 1532-33, 32 L.Ed.2d 15 (1972); Sherbert v. Vemer, 374 U.S. 398, 403-09, 83 S.Ct. 1790, 1793-96, 10 L.Ed.2d 965 (1963). In this case the government challenges the district court’s conclusion that certain proposed Forest Service management decisions, if implemented, would impermissibly burden the Indian plaintiffs’ free exercise rights. Further, the government contends that even if its action would impose such a burden, it has demonstrated a governmental interest sufficient to override the Indians’ religious interests. A. Free Exercise Right To establish a constitutionally valid free exercise claim, the Indian plaintiffs have the initial burden of demonstrating that governmental actions create a burden on their rights. See School District of Abington Township v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963); Wilson v. Block, 708 F.2d 735, 740 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). That the Indians use the Blue Creek high country area for religious purposes and consider the area sacred is not enough to characterize the contemplated Forest Service actions as a burden on free exercise rights. The Indians have to show that the area at issue is indispensable and central to their religious practices and beliefs, and that the proposed governmental actions would seriously interfere with or impair those religious practices. Wilson v. Block, 708 F.2d at 742-44; Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980); Crow v. Gullet, 541 F.Supp. 785, 792 (D.S.D.1982), aff'd, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983). The district court here found that [f]or generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the “great creator,” to perform rituals, and to prepare for specific religious and medicinal ceremonies." }, { "docid": "14630579", "title": "", "text": "to as “the high country,” is considered sacred by several Indian tribes. The district court described the Indian plaintiffs’ use of the high country as follows: Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century and probably much earlier. Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator.” Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make “preparatory medicine.” The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community. Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines. They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush and Kick Dances. 565 F.Supp. 586, 591-92 (N.D.Cal.1983) (citations omitted). In the early 1970s, the Forest Service began studying various land use management plans for the Blue Creek Unit. In 1981, the Forest Service issued the Blue Creek Unit Implementation Plan (“the Management Plan”), which proposed to authorize harvesting of 733 million board feet of timber over an eighty year period. Since the 1960s, the Forest Service has been upgrading a seventy-five mile road between Gasquet, California and Orleans, California (“the G-0 road”). Approximately six miles of the G-0 road lies within the Blue Creek Unit. In 1982, the Forest Service issued an environmental impact statement for the proposed construction of the final six miles, which is referred to as the “Chimney Rock Section.” The plaintiffs brought this" }, { "docid": "5069195", "title": "", "text": "that interest existed. Id. at 177. In addition, the court of appeals found that plaintiffs were not entitled to have tourists excluded from Rainbow Bridge National Monument, given the Park Service’s “strong interest in assur ing public access to th[at] natural wonder,” and statutory duty to do so. Id. at 178. In the present case, defendants concede that the Indian plaintiffs’ use of the high country for religious practices is entitled to First Amendment protection. The Indian plaintiffs’ claim that the high country is sacred is both sincerely held and “rooted in religious belief.” Yoder, supra, 406 U.S. at 215-16, 92 S.Ct. at 1533. The unorthodox character of those religious beliefs does not deprive them of the safeguards contained in the Free Exercise Clause. See, e.g., Thomas, supra, 450 U.S. at 714, 101 S.Ct. at 1430. Similarly, plaintiffs’ lack of a property interest in the high country does not release defendants from the constitutional responsibilities the First Amendment imposes on them. See Badoni, supra, 638 F.2d at 176; Sequoyah, supra, 620 F.2d at 1164. 1. A Burden on the Free Exercise of Religion ' The first step in evaluating plaintiffs’ claim based upon their constitutional right to the free exercise of religion is to determine whether the challenged actions do burden that right. The evidence establishes that construction of the Chimney Rock Section and/or implementation of the Management Plan would seriously impair the Indian plaintiffs’ use of the high country for religious practices. For generations, individual members, spiritual leaders, and medicine persons of the Yurok, Karok, and Tolowa tribes have traveled to the high country to communicate with the “great creator,” to perform rituals, and to prepare for specific religious and medicinal ceremonies. Such use of the high country is “central and indispensable” to the Indian plaintiffs’ religion. See, e.g., Sequoyah, supra, 620 F.2d at 1164; Hopi, supra, 8 ILR at 3075. For the Yurok, Karok, and Tolowa peoples, the high country constitutes the center of the spiritual world. No other geographic areas or sites hold equivalent religious significance for these tribes. Further, use of the high country is essential" }, { "docid": "11793051", "title": "", "text": "will violate the rights of the Indian plaintiffs to practice their religion. Specifically, plaintiffs assert that the Chimney Rock area is sacred “high country” to the Yurok, Karok, and Tolowa Indians, who use the area for religious rites and for the training of “medicinal and spiritual practitioners who serve these [Indian] communities.” The construction of the road, they argue, and the accompanying disruptive intrusions such as logging activity and increased road traffic, are “totally incompatible with the ritual uses of this sacred country.” Plaintiffs submit numerous affidavits, as well as archeological and ethnographic studies commissioned by the Forest Service, to support their claim that this “sacred region” is at “the very core of Northwest [Indian] religious beliefs and practices.” The First Amendment, of course, protects unorthodox as well as orthodox religious belief and practice. Thomas v. Review Bd. of the Indian Employment Security Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975). Furthermore, the fact that the asserted religious activity occurs on public land does not necessarily defeat plaintiffs’ claim. See Badoni v. Higginson, 638 F.2d 172, 176 (10th Cir.1980); Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159, 1164 (6th Cir.1980). The government must manage its property in a manner that does not needlessly impair the ability of its citizens to exercise their religious freedom. See Badoni, supra, at 176, 179 (government must not deny exercise of First Amendment rights compatible with public use of public property). The proposed completion of the G-0 road does not, however, unlawfully burden the Indian plaintiffs’ exercise of their religion. Although the government must allow them reasonable access to public lands in order to follow their religious practices, defendants are not obligated to control or limit public access to public lands in order to facilitate those practices. Thus, the use by a relatively few persons of public lands for religious purposes does not release the government from its statutory responsibility to manage such lands for the benefit of the public at large. See Badoni, supra, at 179; Sequoyah, supra, at 1164-65;" }, { "docid": "20565533", "title": "", "text": "not free to burden religious exercise through less direct restraints than criminal sanctions or fines.” Maj. Op. at 63 n.3. Indeed, both the Supreme Court and this Court held, prior to Smith, that a federal agency’s approval can be the “source,” see Maj. Op. at 61, of a burden on religious exercise. In Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), the Supreme Court applied the Free Exercise Clause to the U.S. Forest Service’s authorization of third party commercial logging and road projects in areas allegedly sacred to a Native American tribe. Id. at 451, 108 S.Ct. 1319. The Court did not hesitate to find that the Forest Service’s approval of commercial logging caused harm to plaintiffs’ religious exercise, id. at 447, 451, 108 S.Ct. 1319. The Court stated that “the Government’s proposed action will have severe effect on the practice of [plaintiffs’] religion,” id. at 447, 108 S.Ct. 1319 (emphasis added). The Court found, however, that this burden did not trigger strict scrutiny because it neither coerced plaintiffs into violating their religious beliefs nor penalized them for their religious exercise, id. at 449, 108 S.Ct. 1319. In Wilson v. Block, 708 F.2d 735 (D.C.Cir.1983), cert. denied, 464 U.S. 1056, 104 S.Ct. 739, 79 L.Ed.2d 197 (1983), we scrutinized the Forest Service’s decision to grant a permit to private interests seeking to expand and develop a ski area. Plaintiffs filed suit and alleged that the proposed development would burden their religious exercise by impairing “their ability to gather sacred objects and conduct ceremonies.” Id. at 740. We concluded that the Forest Service, in granting a permit for private development, was responsible for the alleged burden on religious exercise. See id. at 742 (the “construction approved by the Secretary is, indeed, inconsistent with the plaintiffs’ beliefs, and will cause the plaintiffs spiritual disquiet”). We ultimately found, however, that “such consequences [did] not state a free exercise claim,” id. at 742, because they were insufficient to trigger strict scrutiny, id. at 745. Because the federal agency action in both Lyng and Wilson consisted" }, { "docid": "11793050", "title": "", "text": "and John R. Bock, Secretary of the Department of Agriculture. The State of California, acting through its Native American Heritage Commission and Resources Agency, is the sole plaintiff in California v. Block, et al., C-82-5943 SAW. Defendants in this case are Secretary of Agriculture ■ Block, Forest Service Chief Peterson, and Zane G. Smith, Jr., Regional Forester of the California Region of the Forest Service. In order to obtain a preliminary injunction, plaintiffs must show either probable success on the merits and the possibility of irreparable injury or that serious questions regarding the merits are raised and the balance of hardships tips sharply in their favor. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). The Court has concluded, for reasons now to be stated, that the plaintiffs have not clearly met either of these standards and that the equities call for an early trial rather than now granting the motion for preliminary injunctive relief. 1. Re First Amendment Claims. Plaintiffs contend that construction of the Chimney Rock Section will violate the rights of the Indian plaintiffs to practice their religion. Specifically, plaintiffs assert that the Chimney Rock area is sacred “high country” to the Yurok, Karok, and Tolowa Indians, who use the area for religious rites and for the training of “medicinal and spiritual practitioners who serve these [Indian] communities.” The construction of the road, they argue, and the accompanying disruptive intrusions such as logging activity and increased road traffic, are “totally incompatible with the ritual uses of this sacred country.” Plaintiffs submit numerous affidavits, as well as archeological and ethnographic studies commissioned by the Forest Service, to support their claim that this “sacred region” is at “the very core of Northwest [Indian] religious beliefs and practices.” The First Amendment, of course, protects unorthodox as well as orthodox religious belief and practice. Thomas v. Review Bd. of the Indian Employment Security Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975). Furthermore, the fact that the asserted religious activity occurs on" }, { "docid": "14630573", "title": "", "text": "they have (1) prepared an EIS evaluating the wilderness potential of the Blue Creek Area together with the Eight-mile and Siskiyou Roadless Areas; and (2) completed studies demonstrating that the proposed logging activities would not reduce the supply of anadromous fish in those portions of the Klamath River that flow through the Hoopa Valley Indian Reservation. In all other respects the decree of the district court is affirmed. . A \"roadless area” is defined as \"[a]n area of undeveloped Federal land within which there are not improved roads maintained for travel by means of motorized vehicles intended for highway use.\" FSM § 8260(B)(3)(a)(1). . In view of our disposition of this appeal, we do not find it necessary to address the issues raised by plaintiffs-appellees. . We review de novo the question whether the Indian plaintiffs have a valid first amendment claim. See Fraser v. Bethel School District, No. 403, 755 F.2d 1356, 1359 n. 2 (9th Cir.), cert. granted, — U.S. —, 106 S.Ct. 56, 88 L.Ed.2d 45 (1985); United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). . This finding distinguishes this case from Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983), where tribal free exercise objections to development of the San Francisco Peaks in Arizona were rejected because the plaintiffs failed to show that the development would burden their religious beliefs or practices. Id. at 745. . We find no merit in the government’s claim that the district court set the boundaries of the high country area to encompass an area greater than that established by plaintiffs at trial. Our review of the record reveals that the evidence fully supports the designation of boundaries in the district court’s injunction. . The dissent suggests that the report of Dr. Theodoratus, relied upon by the district court, took an impermissibly broad view of religion. The Theodoratus Report, however, did deal with matters discretely categorized as \"religious,” although it complained of the artificiality of" }, { "docid": "14630555", "title": "", "text": "Such use of the high country is “central and indispensable” to the Indian plaintiffs’ religion____ Communication with the “great creator” is possible in the high country because of the pristine environment and opportunity for solitude found there. Construction of the Chimney Rock Section and/or the harvesting of timber in the high country, including “clear-cutting,” would seriously damage the salient visual, aural, and environmental qualities of the high country. The Forest Service’s own study concluded that “[intrusions on the sanctity of the Blue Creek high country are ... potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.” We agree with the district court that the proposed operations would interfere with the Indian plaintiffs’ free exercise rights. There is a great deal of evidence in the record that the high country is indispensable to a significant number of Indian healers and religious leaders as a place where they receive the “power” that permits them to fill the religious roles that are central to the traditional religions. There is abundant evidence that the unitary pristine nature of the high country is essential to this religious use. Finally, there is much evidence that the religious lives of many other Indians depends upon the services of those leaders who have received the necessary “power” in the high country. On all of these points, there is virtually no evidence to the contrary. The record also amply supports, indeed virtually compels, the conclusion that logging and the construction of logging roads would be utterly inconsistent with the Indians’ religious practices. Because most of the high country has now been designated by Congress as a wilderness area, the issue of logging becomes less significant, although it does not disappear. The question of the completion of the G-0 Road, however, retains its full vitality. A substantial part of the evidence relied upon by the district court was the report prepared for the Forest Service by Dr. Theodoratus, Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest (1979) (“Theodoratus Report”). That Report was not at all equivocal about the Road: [T]he completion" }, { "docid": "5069187", "title": "", "text": "Karok, and Tolowa Indian tribes. This region is known as the “high country.” Although the high country includes the highest mountain peaks in this corner of the Blue Creek Unit, such as Chimney Rock, Doctor Rock, and Peak 8, the area considered sacred encompasses an entire region rather than simply a group of individual sites (Def.Ex. G-K, Theodoratus Report (hereinafter “Theo.Rpt.”), at 419). The Indian plaintiffs and the State of California assert that either construction of Alternative D-4 (hereinafter the Chimney Rock Section) or implementation of the Management Plan would desecrate the high country in violation of the Indian plaintiffs’ rights under the Free Exercise Clause of the First Amendment. The Indian plaintiffs’ use of the high country for religious purposes is not in dispute. Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century (Trial Transcript (hereinafter “Tr.”) at 267-68) and probably much earlier (Theo.Rpt. at 230-73, 386). Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator” (Tr. at 79). Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make “preparatory medicine” (Theo.Rpt. at 46). The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community (Tr. at 110-13; Theo.Rpt. at 417). Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines (Tr. at 237-39). They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush and Kick Dances (Id.;" }, { "docid": "14630582", "title": "", "text": "[hereinafter cited as Note, Indian Religious Freedom]. These problems have been resolved through the adoption of a two-step analysis. First, the plaintiffs must show that the area at issue is central and indispensable to their religious practices and that the threatened activity would seriously interfere with or impair those practices. See Wilson v. Block, 708 F.2d 735, 742-44 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). Second, if the plaintiffs meet their burden, the government must show an overriding government interest that cannot be served through less restrictive alternatives. See id. at 740; Badoni v. Higginson, 638 F.2d 172, 176-77 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). Four circuits have considered claims similar to those raised by the Indian plaintiffs in this case. In all four cases, the claims were rejected. In Sequoyah v. TVA, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980), the Cherokee tribe sought to enjoin the construction of the Tellico Dam in Tennessee. The tribe asserted that the completion of the project would flood their “sacred homeland,” destroying sacred sites, medi cine gathering sites, holy places, and cemeteries and disturbing “the sacred balance of the land.” Id. at 1160. The Sixth Circuit rejected the tribe’s claims, holding that the tribe had failed to establish that their use of the lands was central to the practice of their religion. Id. at 1164-65. The court noted that it was “damage to tribal and family folklore and traditions, more than particular religious observances, which appears to be at stake.” Id. at 1164. The Tenth Circuit addressed a similar issue in Badoni v. Higginson, 638 F.2d 172 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). In Badoni, the tribe challenged the construction of the Glen Canyon Dam in Utah and the management of Rainbow Bridge National Monument by the National Park Service. The dam created Lake Powell, which the tribe claimed had drowned some of their gods and cut off tribal access to" }, { "docid": "14630574", "title": "", "text": "F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). . This finding distinguishes this case from Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983), where tribal free exercise objections to development of the San Francisco Peaks in Arizona were rejected because the plaintiffs failed to show that the development would burden their religious beliefs or practices. Id. at 745. . We find no merit in the government’s claim that the district court set the boundaries of the high country area to encompass an area greater than that established by plaintiffs at trial. Our review of the record reveals that the evidence fully supports the designation of boundaries in the district court’s injunction. . The dissent suggests that the report of Dr. Theodoratus, relied upon by the district court, took an impermissibly broad view of religion. The Theodoratus Report, however, did deal with matters discretely categorized as \"religious,” although it complained of the artificiality of such compartmentalization in the Indian context. Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest 44. The religious uses described by the Report unquestionably qualify as \"religious” by the narrowest definition. In addition, the Theo-doratus Report was not the only evidence of the religious uses of the high country; several witnesses testified to such use. . “Roy may no more prevail on his religious objection to the Government’s use of a Social Secuirty number for his daughter than he could on a sincere religious objection to the size or color of the Government’s tiling cabinets.” Roy, — U.S. at —, 106 S.Ct. at 2152. . See also 16 U.S.C. § 2281(b) (lands in Grand Canyon National Park set aside for Havasupai Indians for purposes to include ‘‘religious purposes”) Pub.L. 91-550, 84 Stat. 1437 (lands and Blue Lake in Carson National Forest set aside for Pueblo de Taos Indians for “traditional uses only, such as religious ceremonials”). . The government’s argument finds some support, albeit in a different context, in the opinion" } ]

[ { "docid": "22927888", "title": "", "text": "appellant “grabbed a hospital tray, and attempted to strike Agent Goff.” Goff deflected the blow. Appellant then kicked Goff on the left shin. Goff then arrested appellant for assaulting a federal officer and, for the first time, advised appellant of his constitutional rights. At Goff’s direction oral emetics were administered to appellant “two or three times.” Appellant was handcuffed when he was caused to drink the emetics. About 8 o’clock p. m. appellant disgorged the contents of his stomach, including two balloons together containing almost 5 grams of heroin. We turn to appellant’s attack upon the constitutional validity of the searches of his person. The constitutional safeguards found in the Fourth Amendment extend to persons crossing our borders as well as to persons crossing our streets. “[T]he Fourth Amendment protects people, not places.” (Terry v. Ohio (1968) 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, quoting Katz v. United States (1967) 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576.) In either context, official action must meet the standard of reasonableness. The scope of the particular intrusion, the manner of its conduct, and the justification for initiating it must all be considered. The test of reasonableness is incapable of comprehensive definition or of mechanical application; in each case the need for the particular search is balanced against the invasion that the search entails. (E. g., Terry v. Ohio, supra, 392 U.S. at 18 n. 15, 88 S.Ct. 1868; Sibron v. New York (1968) 392 U.S. 40, 59, 88 S.Ct. 1912, 20 L.Ed.2d 917; Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; see also Camara v. Municipal Court (1967) 387 U.S. 523, 536-537, 87 S.Ct. 1727,18 L.Ed.2d 930.) Among the circumstancés to be considered is the place of the search, because the situs of the search can affect both the need for the search and the severity of the invasion. Was that site the home, the street, the telephone booth, or the border? In each place a person has some “reasonable ‘expectation of privacy’ ” (Terry v. Ohio, supra, 392 U.S. at" } ]

[ { "docid": "16454355", "title": "", "text": "depends upon the nexus between the goods and a border crossing, regardless of the circumstances under which the property subjected to search moved or will move across the border. See United States v. Ramsey, supra, 431 U.S. at 620, 97 S.Ct. at 1980; United States v. Doe, 472 F.2d 982, 984 (2d Cir.), cert. denied, 411 U.S. 969, 91 S.Ct. 2160, 36 L.Ed.2d 691 (1973). The circumstances of this case establish that the border search exception applies and permits a routine search without probable cause or even reasonable suspicion. We have observed that “the precise limits of the border area depend on the particular factual situation presented by the case raising the issue.” United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969). The container searched in this case was located on a pier, within a customs area, and marked for shipment abroad. It was therefore amenable to a routine border search. And the imminent crossing of the border alone makes the search of the con tainer reasonable, see United States v. Ramsey, supra, 431 U.S. at 619, 97 S.Ct. at 1980; United States v. Nieves, 609 F.2d 642, 645 (2d Cir. 1979), cert. denied, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d 771 (1980), though reasonable suspicion would be required for more intrusive invasions of personal privacy. United States v. Asbury, supra, 586 F.2d at 975; see United States v. Klein, 592 F.2d 909, 911 (5th Cir. 1979). Though the facts known to the agents may well have established reasonable suspicion, as found by the District Judge, 476 F.Supp. at 1003, we hold that even if such reasonable suspicion was lacking, the search did not violate the Fourth Amendment. Appellant further contends that even if constitutional standards were not exceeded, the search of the container and the subsequent seizure of its contents violated the statutory limitations of 22 U.S.C. § 401(a) (1976). This statute authorizes seizure of articles exported in violation of law. It conditions this seizure authority on the existence of probable cause to believe" }, { "docid": "17071924", "title": "", "text": "States v. Bell, 464 F.2d 667 (2nd Cir. 1972); United States v. Lopez, 328 F.Supp. 1077 (E.D.N.Y.1971). The other approach is the border patrol identification stop, authorized by the Immigration and Nationality Act, 8 U.S.C. § 1357(a), the guidelines for which were recently articulated in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1974); and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). The law delimiting Fourth Amendment activity in the skyjacking and border search cases evolved from the reasonableness requirement of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), and its progeny. It is appropriate, therefore, for this court to review the law which describes and limits a legally justified stop as it has developed from Terry and the skyjacking and border search cases. Terry established that a stop which is not an arrest, although clearly a Fourth Amendment “seizure,” may be justified on less than full probable cause if it does not violate the general proscription against unreasonable searches and seizures. 392 U.S. at 20, 88 S.Ct. 1868. The court went on to define “reasonableness” in the context of an on-the-scene stop: (I)n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more" }, { "docid": "14722458", "title": "", "text": "1400, 59 L.Ed.2d 660 (1979): To insist upon neither an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . . ” Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. [1868] at 1880. (Emphasis added.) IRVING R. KAUFMAN, Circuit Judge, dissenting: The majority holds that the detention of Raymond Place’s cocaine-filled luggage, even if an investigatory stop were justified, constituted a violation of Place’s Fourth Amendment rights. It takes this position because it is of the opinion that a holding to the contrary would extend Terry “stops” into a general search warrant. I cannot agree that the investigative stop of Place’s luggage was unreasonable within the meaning of Terry or that affirmance of the district court’s holding would produce an untenable result. Accordingly, I dissent. The Fourth Amendment prohibits only those seizures which are “unreasonable.” Although searches conducted without prior judicial approval are considered “unreasonable,” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), Terry instructs that a law enforcement official may, in appropriate circumstances, detain a person to investigate possible criminal activity without possessing either warrant or probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). In assessing the propriety of these so-called Terry stops, courts must evaluate the scope of the particular intrusion. Id. at 17 n.15, 88 S.Ct. at 1877 n.15. See Reid v. Georgia, 448 U.S. 438,100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Furthermore, in determining the intrusiveness of a stop, the governmental interest in deterring criminal conduct must be balanced against the individual’s constitutionally protected privacy. Terry v. Ohio, supra, 392 U.S. at 20-21, 88 S.Ct. at 1879-1880; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); United States v. Mendenhall," }, { "docid": "21889260", "title": "", "text": "1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such a seizure depends on a balance between the public interest and the individual’s right to privacy free from arbitrary interference by law officers. Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. 2574; Terry, 392 U.S. at 20-21, 88 S.Ct. 1868. In Brignoni-Ponce the Supreme Court held impermissible under the Fourth Amendment stops for questioning by the Border Patrol which were not based on a reasonable suspicion. Although recognizing that a stop was a lesser intrusion than a search, the Court was unwilling to leave the use of such stops to the unlimited discretion of the Border Patrol. 422 U.S. at 882, 95 S.Ct. 2574. The principle established by Brignoni-Ponce, on analogy to the “stop and frisk” decision in Terry, 392 U.S. at 21, 88 S.Ct. 1868, is that a vehicle may be stopped for questioning of the occupants when an officer has specific articulable facts which, taken together with rational inferences from those facts, reasonably warrant suspicion of criminal conduct on the part of the occupants. United States v. Torres-Urena, 513 F.2d 540, 542 (9th Cir. 1975). In reviewing an officer’s grounds for suspicion, courts are to use an objective standard: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a [person] of reasonable caution in the belief’ that the action taken was appropriate?” Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; Torres-Urena, supra, at 542. Any lesser standard, the Supreme Court has observed, would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result which this Court has consistently refused to sanction. [citations omitted]. “If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.” Terry, 392 U.S. at 22, 88 S.Ct. at 1880, quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223," }, { "docid": "1214667", "title": "", "text": "dragnet search of all citizens in a high-crime area of any urban center, based upon the justification that the danger of criminal conduct would be reduced.”) To hold otherwise, authorizing what plaintiffs term “probable cause by association,” would permit authorities arbitrarily to subject citizens to search and thus emasculate the Fourth Amendment. . In Collier v. Miller, 414 F.Supp. 1357 (S.D. Tex. 1976), which considered the constitutionality of a search policy similar to that of the defendants, the court listed the following narrowly limited exceptions: Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (search based on consent); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (stop based on articulable suspicions and frisk for weapons); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1967) (regulatory inspection of premises of an establishment serving alcoholic beverages); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (exigent circumstances of hot pursuit of an armed criminal suspect); Beck v. Ohio, 379 U.S. 89, 89 S.Ct. 223, 13 L.Ed.2d 142 (search incident to a lawful arrest); United States v. Newell, 506 F.2d 401 (5th Cir. 1975) (border searches for contraband and illegal aliens); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973) (airport searches for weapons and explosives); Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972) (search of briefcases and purses upon entering federal courthouse). The court concluded that none could be adapted to the searches at issue in that case. 414 F.Supp. at 1361; see also Wheaton v. Hagan, 435 F.Supp. 1134 (M.D.N.C.1977). Similarly, this Court is of the opinion none of the exceptions are applicable to the searches at issue in this case. . Deposition of Alvan Gillem; Deposition of James Foster; Deposition of L. A. Pierce; Trial testimony of Charles Kinsaul. . In a memorandum to Sergeant J. D. Foster dated December 30, 1977, Officer David Green stated: It was obvious to [Detective] Laing and myself that even with concert goers being searched upon entering the Civic Center that there" }, { "docid": "21582553", "title": "", "text": "88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The exceptions to the warrant-based-on-probable cause requirement are anchored to a tripartite weighing of public necessity, efficacy of the search and the degree of the intrusion. See California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (a warrantless search and seizure of garbage placed outside of the residential curtilage for collection does not violate the Fourth Amendment because there is no legitimate expectation of privacy in such garbage); Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (police may open closed containers while conducting a routine inventory search of an impounded vehicle); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (administrative searches of school children by school officials conducted on school property approved based on reasonable grounds for suspicion of violation of law or school rules); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (random searches without probable cause are permissible in prison since there is no legitimate expectation of privacy in a prison cell); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (consensual search); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (stop and frisk for weapons); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (regulatory-administrative inspection of premises); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) (search incident to a lawful arrest). And the exception to the Fourth Amendment’s warrant requirement we are concerned with in the instant case deals with border searches. In United States v. Mayer, 818 F.2d 725, 727 (10th Cir.1987), we observed: The border search has long been recognized as an exception to the Fourth Amendment’s (probable cause) warrant requirement. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 [1925]. At the border, “the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is struck more favorably to the Government,” United" }, { "docid": "19803455", "title": "", "text": "When a vehicle is stopped by law enforcement, all of its occupants are “seized” for Fourth Amendment purposes. Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 2406-08, 168 L.Ed.2d 132 (2007). In determining whether such a seizure comports with the Fourth Amendment, “the touchstone ... is reasonableness.” United States v. Kriesel, 508 F.3d 941, 947 (9th Cir.2007) (quoting Samson v. California, 547 U.S. 843, 855 n. 4, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006)). The “general Fourth Amendment approach” requires courts to examine the totality of the circumstances to determine whether a search or seizure is reasonable. United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (citation omitted). The first aspect of the reasonableness inquiry concerns the level of suspicion that the government’s agents must possess to justify their intrusions. Without such justification, a seizure is per se unreasonable. Traditionally, all Fourth Amendment “seizures” constituted “arrests” and therefore required probable cause. Dunaway v. New York, 442 U.S. 200, 208-09, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Departing from the traditional rule, the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “recognized an exception” to the probable cause requirement for police encounters that were “much less severe [in their intrusiveness] than ... traditional ‘arrests,’ ” holding that reasonable suspicion would suffice. Dunaway, 442 U.S. at 209, 99 S.Ct. 2248. The reasonable suspicion/probable cause framework remains binary in nature, see Morgan v. Woessner, 997 F.2d 1244, 1252(9th Cir.1993), with the proviso that under the border search doctrine, law enforcement may conduct certain searches and seizures at the border without any suspicion, United States v. Alfonso, 759 F.2d 728, 733-34 (9th Cir. 1985). The second aspect of the inquiry concerns the manner in which a seizure is conducted — typically whether law enforcement used excessive force. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“[T]he ‘reasonableness’ of a particular seizure depends not only on when it is made, but also on how it is carried out.” (emphasis removed)). “[A]ll claims that" }, { "docid": "19803456", "title": "", "text": "the traditional rule, the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “recognized an exception” to the probable cause requirement for police encounters that were “much less severe [in their intrusiveness] than ... traditional ‘arrests,’ ” holding that reasonable suspicion would suffice. Dunaway, 442 U.S. at 209, 99 S.Ct. 2248. The reasonable suspicion/probable cause framework remains binary in nature, see Morgan v. Woessner, 997 F.2d 1244, 1252(9th Cir.1993), with the proviso that under the border search doctrine, law enforcement may conduct certain searches and seizures at the border without any suspicion, United States v. Alfonso, 759 F.2d 728, 733-34 (9th Cir. 1985). The second aspect of the inquiry concerns the manner in which a seizure is conducted — typically whether law enforcement used excessive force. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“[T]he ‘reasonableness’ of a particular seizure depends not only on when it is made, but also on how it is carried out.” (emphasis removed)). “[A]ll claims that law enforcement officers have used excessive force— deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.... ” Id. (emphasis removed). In so doing, courts consider the totality of the circumstances, Samson, 547 U.S. at 848, 126 S.Ct. 2193, and “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted). In accordance with these principles, we must determine as a threshold matter what level of suspicion was required to render the Border Patrol agents’ stop of Appellants’ vehicle “reasonable.” The possible justifications for intrusion range from no suspicion if the seizure was incident to a “border search” or its functional equivalent, to “reasonable suspicion” if the seizure was incident to an “extended border search,” to probable cause if the seizure nonetheless constituted an" }, { "docid": "966275", "title": "", "text": "47 S.Ct. 746, 71 L.Ed. 1202 (1927); United States v. Booker, 461 F.2d 990 (6 Cir. 1972); United States v. Kim, 430 F.2d 58, 61 (9 Cir. 1970). The Booker case involved the stopping of a vehicle for a traffic offense. The officer shined the light into the car and observed the barrel of a rifle. The Sixth Circuit reversed the district court’s finding that the gun was inadmissible because the search lacked probable cause. Judge McCree concurred in the result but observed: “A person seated in a darkened automobile at night has a right to rely upon the privacy afforded by those circumstances. ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.’ Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). However, under all the circumstances of this case, I regard the limited invasion of appellants’ privacy by the illumination of the automobile’s interior as reasonable.” United States v. Booker, supra, 461 F.2d at 993. We need not decide here whether the officer’s flashlight inspection of Wickizer’s car constitutes a search. For purposes of decision, we assume it did, but find that it constituted a reasonable invasion of the defendant’s privacy. Judgment affirmed. BRIGHT, Circuit Judge (concurring). To the extent that Judge Lay’s opinion might be interpreted as justifying the warrantless search in this case under the “stop and frisk” doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 5 L.Ed.2d 372 (1968), I disagree. I find nothing in Terry which permits a general warrantless search of an automobile not occupied by the person who is stopped, interrogated, and frisked. Cf. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). However, I concur in the result because the sawed-off rifle came into the plain view of the police and could be seized under the “plain view” doctrine, which applies" }, { "docid": "19994266", "title": "", "text": "389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Each of these exceptions developed only after the Supreme Court had decided over a period of years that public necessity required a narrowing of a person’s “expectation of privacy” under the particular circumstances in question. These exceptions have remained very limited in scope, and the Supreme Court has been openly reluctant to expand upon them. See United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). The Fourth Amendment prohibition against unreasonable searches is applicable to state action through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Hence, this Court, in considering the warrantless searches at issue in this case, must specifically determine whether such searches fit within one of those few exceptions that the Supreme Court has found to the “warrant based on probable cause” requirement of the Fourth Amendment. In making this determination, the Court does not consider each of the recognized exceptions to the Warrant Clause. Two other federal district courts have only recently reviewed these exceptions in the context of searches at public auditoriums, and this Court, which finds no fault in those courts’ conclusion that the exceptions are inapplicable, sees no reason to retrace that analysis in full. See Collier v. Miller, 414 F.Supp. 1357 (S.D.Tex.1976); Wheaton, supra. The Court, however, will examine the facts underlying the Auditorium search procedures in light of the “stop-and-frisk” and “consent” warrant requirement exceptions, the two exceptions which defendants apparently, claim apply to the situation in question. Prior to reviewing this claim, the Court would reiterate that the burden of proof is upon the defendants to show that either one of these exceptions excuses their warrantless searches. Chadwick, supra. The United States Supreme Court first set forth the stop-and-frisk exception to warrant searches in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)," }, { "docid": "2163679", "title": "", "text": "occur in reasonable temporal and spatial proximity to the departure. See id. Duncan, by checking his luggage, passing through the airline checkpoint, obtaining a boarding pass, and proceeding up the ramp had manifested a definite commitment to leave the country. Since this was a search at a “border”, of a person leaving the country, there is no need for probable cause, warrants or even suspicion. United States v. Stanley, 545 F.2d at 655. See also United States v. Ajlouny, 629 F.2d 830, 834 n. 3 (2d Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840 (1981). Rather, the search comports with the fourth amendment unless it violates “reasonableness”. See United States v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir.1970). Reasonableness, when used in the context of a border search, is “incapable of comprehensive definition or of mechanical application.. . . ” Id. The scope of the intrusion, the manner of its conduct, and the justification for its initiation must all be considered in determining whether a search comports with reasonableness. The search of Duncan comports with reasonableness in both scope and conduct. In the initial stages of the search only Duncan’s carry-on baggage, pockets, and wallet were searched, and he was superficially patted down. This does not involve a serious invasion of personal privacy and dignity. Although he was later required to remove his sweater and undershirt, it was conducted only after agents had recovered over $5,000 — the maximum that can be exported without a declaration. This excess currency created the real suspicion necessary for a strip search. See United States v. Palmer, 575 F.2d 721, 723-24 (9th Cir.), cert. denied, 439 U.S. 875, 99 S.Ct. 212, 58 L.Ed.2d 189 (1978). Moreover, there is no indication that the manner in which this search was conducted was unreasonable. The length of the search was no longer than necessary to ensure no laws were violated — although the stop eventually stretched to over three hours, most of this time was after agents had evidence Duncan had violated the law, and thus had cause to detain him. The search" }, { "docid": "13115882", "title": "", "text": "warrant unreasonable per se “subject only to a few specifically established and well-delineated exceptions”. E. g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The creation or recognition of an exception to the “warrant-based-on-probable-cause” requirement is generally premised on a tripartite weighing of public necessity, efficacy of the search and degree of the intrusion. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (search based on consent); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (stop based on articulable suspicions and frisk for weapons); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1967) (regulatory inspection of premises of an establishment serving alcoholic beverages); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (exigent circumstances of hot pursuit of an armed criminal suspect); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) (search incident to a lawful arrest); United States v. Newell, 506 F.2d 401 (5th Cir. 1975) (border searches for contraband and illegal aliens); United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir. 1973); United States v. Moreno, 475 F.2d 44 (5th Cir. 1973), cert. denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973) (airport searches for weapons and explosives); Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972) (search of briefcases and purses upon entering federal courthouse). These exceptions are well-defined and easily identified by specific factual circumstances. The search policy sub judice requires neither an arrest nor hot pursuit; separate analysis of these exceptions is therefore not warranted. The Court is also of the opinion that “the difficult problem of effectively policing . . . national boundaries” renders the border search exception sufficiently inapposite to justify a comparison with the searches here at issue. The Court has likewise concluded that the administrative searches authorized in Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1970), Colonnade Catering Corp." }, { "docid": "23495495", "title": "", "text": "United States v. Chiarito, 507 F.2d 1098 (5th Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975). Where an airline passenger was compelled to empty his pockets, disclosing contraband, we “h[e]ld that those who actually present themselves for boarding on an air carrier, like those seeking entrance into the country, are subject to a search based on mere or unsupported suspicion.” United States v. Skipwith, 482 F.2d 1272, 1276 (5th Cir. 1973). We have never, though, specifically addressed the standard to be applied in pat-down searches at the border. We now hold that “mere suspicion” is enough for these searches, that is, that they are a part of routine border inspection. In applying the balancing test described in Himmelwright and Afanador, we think the key variable is the invasion of the privacy and dignity of the individual. A strip search, and even more a body cavity or stomach search, entails at the very least embarrassment to the person involved. It presents a degree of intrusion which requires more than mere suspicion to justify. However, we do not find a comparable degree of intrusiveness in a simple frisk or pat-down. A frisk invokes relatively little indignity or embarrassment. It can be conducted on a public street, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is neither painful nor dangerous. Whatever the stigma attached to a pat-down in other contexts, we think that during a border inspection it is no worse than having a stranger rummage through one’s luggage, a practice which is clearly acceptable. Other circuits agree. The second circuit, for instance, adheres to the rule that before an official may insist upon such an extensive invasion of privacy as a strip search he should have a suspicion of illegal concealment that is substantial enough to make the search a reasonable exercise of authority. United States v. Asbury, 586 F.2d 973, 975 (1978). Short of a strip search, however, that court has applied a wholly different standard. Thus, in United States v. Nieves, 609 F.2d 642, 646 (2d Cir. 1979)," }, { "docid": "7424212", "title": "", "text": "confirmation would be obtained prior to the administration of any discipline. It is the proposed 1986 testing that forms the basis of this lawsuit. DISCUSSION: A. Fourth Amendment The fourth amendment to the United States Constitution states in its entirety: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The fourth amendment prohibits unreasonable searches and seizures by the states by virtue of the fourteenth amendment. This includes municipalities and municipal officials. Mapp v. Ohio, 367 U.S. 643 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). The fourth amendment protects people, not places. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Since a blood test is subject to fourth amendment constraints, Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966), it seems clear that a urine test likewise amounts to a search and seizure from a person within the fourth amendment. Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.1986); McDonell v. Hunter, 612 F.Supp. 1122 (S.D. Iowa 1985); Allen v. City of Marietta, 601 F.Supp. 482 (N.D.Ga.1985). The parties in this case do not disagree on this point. The fourth amendment, however, proscribes only unreasonable searches and seizures. The determination of reasonableness requires a balancing of the need to search against the invasion of the individual which the search entails. New Jersey v. T.L.O., 469 U.S. 325, 336, 105 S.Ct. 733, 740, 83 L.Ed.2d 720, 731 (1985). The Supreme Court has said that: The test of reasonableness under the fourth amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner" }, { "docid": "17362878", "title": "", "text": "hopeful that the justices will illuminate the contrary dicta of Dunaway, and thus signal the proper resolution of future cases. For the moment, I am satisfied that Terry retains sufficient force to warrant its application in the instant case. I therefore join in my brother Meskill’s opinion. OAKES, Circuit Judge (dissenting): In the traditional, what Anthony Amsterdam has called the “atomistic,” approach to the Fourth Amendment, there were two questions: first, was the practice a “search” or “seizure” and, second, did it invade the constitutionally protected area of a person, his house, papers, or effects? Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in strengthening the “atomistic” focus, reframed the questions into one inquiry, whether there was an invasion of “what [a person] seeks to preserve as private, even in an area accessible to the public.” Id. at 351, 88 S.Ct. at 511. If so, the “Government’s activities [which] . violated the privacy upon which [the person] . . justifiably relied . thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment,” id. at 353, 88 S.Ct. at 512, “[f]or the Fourth Amendment protects people, not places.” Id. at 351, 88 S.Ct. at 511. It followed from this that “the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure,” id., or I would add upon the presence or absence of any physical intrusion whatsoever. Almost immediately, however, in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court redivided Fourth Amendment analysis into two parts to ask not only whether the individual harbored a reasonable “expectation of privacy,” Katz v. United States, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring), but also whether there had been an “unreasonable governmental intrusion.” Terry v. Ohio, 392 U.S. at 9, 88 S.Ct. 1868. The Terry approach tended “to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of" }, { "docid": "23475870", "title": "", "text": "389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). The purpose of the fourth amendment is to protect people from arbitrary and oppressive governmental conduct. Michigan v. Tyler, 436 U.S. 499, 504, 98 S.Ct. 1942, 1947, 56 L.Ed.2d 486 (1978); United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). Thus, the fourth amendment vests individuals with the right to be free from “unreasonable government intrusions into their legitimate expectations of privacy.” Chadwick, 433 U.S. at 7, 97 S.Ct. at 2481; see also Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979); Terry, 392 U.S. at 9, 88 S.Ct. at 1873. The fourth amendment prohibits only unreasonable searches, Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925); therefore, the test in a fourth amendment case is whether the search was reasonable. To determine reasonableness, the court must balance the intrusiveness of the search on the individual’s fourth amendment interests against its promotion of legitimate governmental interests. Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983); United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 2579, 77 L.Ed.2d 22 (1983); Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); see also United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976); Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879-1880. The Supreme Court has stated: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Bell, 441 U.S. at 559, 99 S.Ct. at 1884. An examination of the first prong of the reasonableness test — the intrusion on the individual’s fourth" }, { "docid": "5680704", "title": "", "text": "Ms. Nelson did not demonstrate Officers McMullen and Ratzlaff violated her Fourth Amendment rights. We agree. The Fourth Amendment provides citizens the right to be free from unreasonable government searches. See Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quotation marks omitted). Therefore, the crux of this case necessarily becomes an analysis of the reasonableness of the search conducted on Ms. Nelson. We employ a familiar balancing test in order to determine whether a search was reasonable: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Bell, 441 U.S. at 559, 99 S.Ct. 1861. See also Cottrell v. Kaysville City, 994 F.2d 730, 734 (10th Cir.1993); Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir.1993). This test is fact-specific, “measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). We start from the irrefutable premise “that a strip search is an invasion of personal rights of the first magnitude.” Chapman, 989 F.2d at 395. Undoubtedly, there are searches more intrusive than the exposure of one’s breast in a public place, but we are hard-pressed to think of more than a few. Clearly, this must have been a humiliating experience for Ms. Nelson. On the other side of the equation, the government interest in confirming Ms. Nelson was not the suspect wanted on the outstanding felony warrant was" }, { "docid": "2163678", "title": "", "text": "validity of border searches at what are referred to as the “functional equivalent” of a border. See Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973) (“a search of the passengers and cargo of' an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search”). See also United States v. Moore, 638 F.2d 1171, 1173 (9th Cir.1980). Here Duncan was stopped while he was proceeding up the ramp to board a plane bound for Bogota, Colombia. We think that the point at which he was stopped was the “functional equivalent of a border.” See United States v. Cutaia, 511 F.Supp. 619, 625 (E.D.N.Y.1981) (search of passengers while waiting to board aircraft for international flight is a search at the border). To require that a passenger board a plane before allowing a customs stop is unreasonable. It is enough that the passenger manifest a definite commitment to leave the United States and that the search occur in reasonable temporal and spatial proximity to the departure. See id. Duncan, by checking his luggage, passing through the airline checkpoint, obtaining a boarding pass, and proceeding up the ramp had manifested a definite commitment to leave the country. Since this was a search at a “border”, of a person leaving the country, there is no need for probable cause, warrants or even suspicion. United States v. Stanley, 545 F.2d at 655. See also United States v. Ajlouny, 629 F.2d 830, 834 n. 3 (2d Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 840 (1981). Rather, the search comports with the fourth amendment unless it violates “reasonableness”. See United States v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir.1970). Reasonableness, when used in the context of a border search, is “incapable of comprehensive definition or of mechanical application.. . . ” Id. The scope of the intrusion, the manner of its conduct, and the justification for its initiation must all be considered in determining whether a search comports with reasonableness. The search" }, { "docid": "5977314", "title": "", "text": "the entire occurrence. . 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). For a full exegesis of Katz, see 1 La-Fave Treatise 221-AO. The Supreme Court has interpreted Katz as holding “wherever’ an individual may harbor a reasonable ‘expectation of privacy’ ... he is entitled to be free from unreasonable governmental intrusion.” Terry v. Ohio, 392 U.S. 1, 9, 85 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968) (citations omitted). See Rakas v. Illinois, 439 U.S. 128, 152, 99 S.Ct. 421, 435, 58 L.Ed.2d 387 (1978): “The ultimate question, therefore, is whether one’s claim to privacy from governmental intrusion is reasonable in light of all the surrounding circumstances.” . We emphasize that this is a normal airport stop case, not a border case or a case where the suspect has presented himself for aircraft boarding with carry-on luggage. These latter two situations often involve different fourth amendment standards. See, e.g., United States v. Himmelwright, 551 F.2d 991 (5th Cir.) cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977); United States v. Skipwith, 482 F.2d 1272 (5th Cir.1973). . Place held that the sniffing of luggage by a narcotics detector dog is not a search. _ U.S. at _, 103 S.Ct. at 2649. Puglisi does not contend that such action amounted to a search in this case. . The Court suggested that a fairly unintrusive search would involve seizing the luggage from a third party to whom the owner had relinquished control, for the purpose of conducting an on the spot inquiry using a detector dog. Id. at _, 103 S.Ct. at 2643. Seizing the luggage from the owner himself, subjecting it to a more intrusive inspection than a dog sniff, and keeping the parcel for more than a few minutes would impinge more seriously upon possessory and privacy interests, thus requiring a greater governmental interest in the seizure. . In other words, seizing a person’s luggage may actually seize the person because, for many reasons, he may be able to go nowhere without it. Such a seizure clearly implicates the fourth amendment, and could be the" }, { "docid": "23475869", "title": "", "text": "portion of the judgment that dismissed its complaint. No appeal has been taken from the dismissal of the Cassiack complaint, the first of the consolidated cases. III. DISCUSSION Council 82 raises two issues on appeal: whether warrantless searches of correction officers are unreasonable under the fourth and fourteenth amendments of the Constitution; and whether the correction officials who ordered the warrantless searches are immune from liability for damages based upon the defense of qualified immunity. We proceed to address each issue seriatim. A. Strip Searches The fourth amendment provides that: The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. It is settled that the fourth amendment protects people, not places. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). The purpose of the fourth amendment is to protect people from arbitrary and oppressive governmental conduct. Michigan v. Tyler, 436 U.S. 499, 504, 98 S.Ct. 1942, 1947, 56 L.Ed.2d 486 (1978); United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). Thus, the fourth amendment vests individuals with the right to be free from “unreasonable government intrusions into their legitimate expectations of privacy.” Chadwick, 433 U.S. at 7, 97 S.Ct. at 2481; see also Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979); Terry, 392 U.S. at 9, 88 S.Ct. at 1873. The fourth amendment prohibits only unreasonable searches, Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925); therefore, the test in a fourth amendment case is whether the search was reasonable. To determine reasonableness, the court must balance the intrusiveness of the search on the individual’s fourth amendment interests against its promotion of" } ]

[ { "docid": "22737780", "title": "", "text": "now feel an economic compulsion to abide by their agreements. But visiting coercion upon the minds of some unidentified Caucasian property owners is not at all the state action which was condemned in the Shelley case. In that case, the state court had directed “the full coercive power of government” against the Negro petitioners — forcefully removing them from their property because they fell in a class discriminatorily defined. But in this case, where no identifiable third person can be directly injured if respondent is made to disgorge enough to indemnify petitioners, the Court should not undertake to hold that the Fourteenth Amendment stands as a bar to the state court’s enforcement of its contract law. Obviously we can only interfere in this case if the Fourteenth Amendment compels us to do so, for that is the only basis upon which respondent seeks to sustain her defense. While we are limited to enforcement of the Fourteenth Amendment, the state courts are not; they may decline to recognize the covenants for other reasons. Since we must rest our decision on the Constitution alone, we must set aside predilections on social policy and adhere to the settled rules which restrict the exercise of our power of judicial review — remembering that the only restraint upon this power is our own sense of self-restraint. Because I cannot see how respondent can avail herself of the Fourteenth Amendment rights of total strangers— the only rights which she has chosen to assert — and since I cannot see how the Court can find that those rights would be impaired in this particular case by requiring respondent to pay petitioners for the injury which she recognizes that she has brought upon them, I am unwilling to join the Court in today’s decision. Shelley v. Kraemer, 334 U. S. 1 (1948). The state action which we struck down was epitomized in this language, 334 U. S., at 19: “We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were" } ]

[ { "docid": "22206822", "title": "", "text": "836, 92 L.Ed. 1161 (1948). But the nature and extent of the judicial involvement required to bring into play these constitutional constraints is unclear. The central case is, of course, Shelley v. Kraemer, where the Court ruled that judicial enforcement of private agreements containing restrictive covenants against selling to Negroes violated the Fourteenth Amendment’s command that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” But the contours of Shelley remain undefined and it is uncertain just how far its reasoning extends. Judge Greene declined to rest his opinion on Shelley for fear that if, for constitutional purposes, every private right were transformed into governmental action by the mere fact of court enforcement of it, the distinction between private and governmental action would be obliterated. He accepted the reasoning of Mr. Justice Black, who joined in the Shelley opinion but has since maintained that its doctrine applies only where, as in Shelley itself, the court is called upon to upset a transaction between a willing buyer and a willing, seller. Others, however, have urged different interpretations of Shelley, ones which would extend its principle beyond its facts but would still leave certain private rights, even when judicially enforced, immune from the Constitution’s restraints on government. Some commentators have suggested that private action is subject to constitutional scrutiny only when the state has encouraged or sanctioned it. Qthers have gone further and suggested that at least where racial discrimination is involved the state denies the equal protection of the law when it does not act affirmatively to assure equal protection by legislating against privately ini- | tiated, as well as governmental, discrim1 ination. But these commentators are careful to point out that Shelley should not be read to hold that a state cannot enforce any discrimination which it could not itself make. There is, on this view, unconstitutional action by inaction ex cept in those situations where the Constitution itself demands inaction; that is, in those situations where the state could not legislate equality because to do so would impinge on" }, { "docid": "5229022", "title": "", "text": "v. Pape, supra, at 205-206 [81 S.Ct. 473, at 494] (opinion of Frankfurter, J.). “In contrast to the reach of the Thirteenth Amendment, the Fourteenth Amendment has only limited applicability; the commands of the Fourteenth Amendment are addressed only to the State or to those acting under color of its authority. See, e. g., Civil Rights Cases, supra; United States v. Harris, 106 U.S. 629 [1 S.Ct. 601, 27 L.Ed. 290] (1883); United States v. Cruikshank, 92 U.S. 542 [23 L.Ed. 588] (1876). The Fourteenth Amendment itself ‘erects no shield against merely private conduct, however discriminatory or wrongful.’ Shelley v. Kraemer, 334 U.S. 1, 13 [68 S.Ct. 836, 842, 92 L.Ed. 116] (1948); see also United States v. Price, 383 U.S. 787 [86 S.Ct. 1152, 16 L.Ed.2d 267] (1966); Evans v. Newton, 382 U.S. 296 [86 S.Ct. 486, 15 L.Ed.2d 373] (1966); Hodges v. United States, 203 U.S. 1 [27 S.Ct. 6, 51 L.Ed. 65] (1906). Similarly, actions of the Federal Government and its officers are beyond the purview of the Amendment. And since the District of Columbia is not a ‘State’ within the meaning of the Fourteenth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 499 [74 S.Ct. 693, 694, 98 L.Ed. 884] (1954); Shelley v. Kraemer, supra [334 U.S.] at 8 [68 S.Ct. at 839-840]; Wight v. Davidson, 181 U.S. 371, 384 [21 S.Ct. 616, 621, 45 L.Ed. 900] (1901), neither the District nor its officers are subject to its restrictions. “Like the Amendment upon which it [is] based, § 1983 is of only limited scope. The statute deals only with those deprivations of rights that are accomplished under the color of the law of ‘any State or Territory.’ It does not reach purely private conduct and, with the exception of the Territories, actions of the Federal Government and its officers are at least facially exempt from its proscriptions. Thus, unlike the situation presented in Hurd, the instant case does not involve a constitutional provision and related statute of universal applicability. This being so, the considerations that led to an expansive reading of § 1982 so as to" }, { "docid": "21976301", "title": "", "text": "decisions may be interpreted as support for the contention that state action is present whenever a state law permits a private individual to perform acts which would be prohibited to the state in propria persona by the Fourteenth Amendment, we decline to extend their rationale to this case. We agree with Judge Blumenfeld in Kerrigan v. Boucher, 326 F.Supp. 647, 651 (D.Conn. 1971), aff’d on other grounds, 450 F.2d 487, who found insufficient state action in the Connecticut innkeepers’ lien statute: The state has not made these defendants agents of the State of Connecticut so as to require them while acting in their private capacity “to accord the procedural due process which the Fourteenth Amendment demands of a state.” McGuane v. Chenango Court, Inc., 431 F.2d 1189, 1190 (2d Cir. 1970). Contra Hall v. Garson [citation]; Klim v. Jones [citation], Cf. Santiago v. McElroy, supra, 819 F. Supp. at 292 (where the challenged statute authorized only state officials to conduct sales of distrained property). I do not find persuasive the reasoning in the latter two cited cases that the fact that the liens can be imposed and the sales performed only because of specific statutory authority is enough for state action under Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and Reitman v. Mulkey, supra, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 [(1967)]. A similar argument was made and decisively rejected in McGuane v. Chenango Court, Inc., supra, 431 F.2d at 1190 * * * Even if the landlord and innkeeper lien decisions are correct within the limited context of their precise holdings, it is important to note that these cases have always presented unique factual situations which simply do not exist in cases that deal with other types of state statutes. It is illustrative on this score that the Court of Appeals for the 5th Circuit, which had previously decided (1970) and later reaffirmed (1973) the landmark case of Hall v. Garson, supra, (in which a landlords’ lien statute was found to constitute state action), expressly declined to extend the doctrine of" }, { "docid": "223288", "title": "", "text": "499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). . The Court declined to express a view on the merits of Batson's sixth amendment arguments. 476 U.S. at 84, 106 S.Ct. at 1716 n. 4. Recently, in Holland v. Illinois, — U.S. -, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), the Court held that the fair cross section requirement of the sixth amendment does not prevent either side in a criminal prosecution from exercising its peremptory challenges in order to exclude cognizable racial or other groups from the petit jury as long as the venire itself is drawn from a fair cross section of the community. . The facts of Blum v. Yaretsky, see accompanying text, are not pertinent to our case. Unlike this case, the private action at issue in Blum failed to satisfy Lugar’s first prong. In Blum, the Court noted that it was dealing with a case “obviously different from those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the State so as to make it ‘state’ action for purposes of the Fourteenth Amendment.\" 457 U.S. at 1003, 102 S.Ct. at 2785. . The portion of the en banc opinion in Edmon-son pertaining to state action does not discuss Shelley, Burton, or Tulsa. See Edmonson, 895 F.2d at 221-22. RIPPLE, Circuit Judge, dissenting. Since the Supreme Court’s decision in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), “the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may be fairly said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1947). The majority ignores this “firmly embedded” principle. Because Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not require us to find that state action exists when private litigants exercise" }, { "docid": "12622243", "title": "", "text": "we noted in the Supplemental Opinion and Order, 386 F. Supp. at 1269-1270, the legal questions in this case are substantial and complex, and the precise issue which was presented to us has not been decided by the Court of Appeals for the Third Circuit, although it is our belief that Gibbs v. Titelman, supra, is prescient of the ultimate decision by this Circuit in a case which involves the legal and factual matters that are presented by this action. Thus, the interest of all parties are best served by termination of the proceedings in this Court, so that plaintiffs may seek appellate review of our decision, should they choose to do so. One issue, however, has been raised by plaintiffs which was not before us at the time of the decision on the motion for partial summary adjudication. In essence, plaintiffs argue that, under certain circumstances, the Commonwealth of Pennsylvania permits collateral “enforcement” of the “repairmen’s lien” through utilization of the criminal justice system; this possibility, it is said, further demonstrates the existence of state action in the challenged common law and statutory lien mechanism. We will assume, arguendo, that situations may arise in which criminal pro ceedings are related to the assertion of a “repairmen’s lien” against an unwilling automobile owner, and that such proceedings may collaterally aid in the enforcement of the lien by the repairman. For example, a prosecution for criminal trespass might be instituted by a repairman against a disgruntled vehicle owner who entered the repairman’s property to regain forceful possession of his vehicle. See Younger v. Plunkett, 395 F.Supp. 702 (E.D.Pa.1975) Indeed, in light of the bitterness which surrounds many disputes concerning automobile repair bills, it is not difficult to hypothesize prosecutions for assault and battery, disorderly conduct, or breach of the peace. Finally, we will assume, for this limited purpose, that the Commonwealth might seek to protect the repairman’s lawful right to possession of a detained vehicle by criminal prosecution of persons who attempted to interfere with such possession. The possibility of criminal prosecution, however, does not thereby infuse the “repairmen’s lien” with" }, { "docid": "12622244", "title": "", "text": "state action in the challenged common law and statutory lien mechanism. We will assume, arguendo, that situations may arise in which criminal pro ceedings are related to the assertion of a “repairmen’s lien” against an unwilling automobile owner, and that such proceedings may collaterally aid in the enforcement of the lien by the repairman. For example, a prosecution for criminal trespass might be instituted by a repairman against a disgruntled vehicle owner who entered the repairman’s property to regain forceful possession of his vehicle. See Younger v. Plunkett, 395 F.Supp. 702 (E.D.Pa.1975) Indeed, in light of the bitterness which surrounds many disputes concerning automobile repair bills, it is not difficult to hypothesize prosecutions for assault and battery, disorderly conduct, or breach of the peace. Finally, we will assume, for this limited purpose, that the Commonwealth might seek to protect the repairman’s lawful right to possession of a detained vehicle by criminal prosecution of persons who attempted to interfere with such possession. The possibility of criminal prosecution, however, does not thereby infuse the “repairmen’s lien” with the requisite state action so as to bring the otherwise private acts of individuals within the proscription of the Fourteenth Amendment. • In support of their contention that judicial action in and of itself constitutes state action within the meaning of the Fourteenth Amendment, plaintiffs cite only Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), and Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). In the years following these decisions, however, the Supreme Court and lower federal courts have declined to apply the state action doctrine announced in those decisions to judicial proceedings in general, whether civil or criminal, and have refused to impute to the state the actions of private litigants, which if undertaken by the state in propria personna, would contravene constitutional proscriptions, merely because private individuals invoked the jurisdiction of the courts■ to enforce state laws which did not compel such actions. The limitation of the doctrine of Shelley v. Kraemer, is illustrated in the 1970 decision in Evans v. Abney, 396" }, { "docid": "12622245", "title": "", "text": "the requisite state action so as to bring the otherwise private acts of individuals within the proscription of the Fourteenth Amendment. • In support of their contention that judicial action in and of itself constitutes state action within the meaning of the Fourteenth Amendment, plaintiffs cite only Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), and Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). In the years following these decisions, however, the Supreme Court and lower federal courts have declined to apply the state action doctrine announced in those decisions to judicial proceedings in general, whether civil or criminal, and have refused to impute to the state the actions of private litigants, which if undertaken by the state in propria personna, would contravene constitutional proscriptions, merely because private individuals invoked the jurisdiction of the courts■ to enforce state laws which did not compel such actions. The limitation of the doctrine of Shelley v. Kraemer, is illustrated in the 1970 decision in Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970), which involved a racially discriminatory clause in a testamentary trust that was authorized but not compelled by a state statute. In dissent, Mr. Justice Brennan argued in support of the broad theory of state action urged by plaintiffs in the instant case: In 1911, only six years after the enactment of §§ 69-504 and 69-505, Senator Bacon, a lawyer, wrote his will. When he wrote the provision creating Baconsfield as a public park open only to the white race, he was not merely expressing his own testamentary intent, but was taking advantage of the special power Georgia had conferred by §§ 69-504 and 69-505 on testators seeking to establish racially segregated public parks. As Mr. Justice White concluded in Evans v. Newton, “ ‘the State through its regulations has become involved to such a significant extent’ in bringing about the discriminatory provision in Senator Bacon’s trust that the racial restriction ‘must be held to reflect state policy and therefore to violate the Fourteenth Amendment.’ ” [Evans" }, { "docid": "4454905", "title": "", "text": "private individual in possession of the motor vehicle does not constitute “state action” within the meaning of the Fourteenth Amendment. In Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972), the Supreme Court stated (with respect to whether there was state action for the purpose of the equal protection clause) “where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discriminations,’ ... in order for the discriminatory action to fall within the ambit of the constitutional prohibition.” At the outset, before evaluating the degree of the state’s involvement here, it is useful to note what circumstances are not before us. It is clear that Indiana law does not compel the private mechanic to retain the owner’s automobile. See e. g., Moose Lodge, supra; Adickes v. Kress & Co., 398 U.S. 144, 169, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Nor is the situation comparable to that considered in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) where judicial action to enforce racially restrictive covenants was deemed state action and therefore in violation of the Fourteenth Amendment. Nor is there such symbiotic relationship between the state and the private party as in Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Nor is the retention accomplished by the mechanic’s willful participation in joint activity with the State or its agents. United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); United States v. Guest, 383 U.S. 745, 756, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). Nor is the detention effectuated with ministerial participation by state officials as in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) reh. denied 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165, where the Supreme Court invalidated prejudgment garnishment and replevin remedies because they worked a deprivation of property without due process" }, { "docid": "9940501", "title": "", "text": "Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883) (stating that an “[i]ndividual invasion of individual rights is not the subject matter of the [Fourteenth A]mendment”); Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948) (stating that the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful”); Unit ed States v. Guest, 383 U.S. 745, 755, 86 S.Ct. 1170, 1176, 16 L.Ed.2d 239 (1966) (opinion of Stevens, J.) (“It is a commonplace that rights under the Equal Protection Clause itself arise only where there has been involvement of the State or of one acting under the color of its authority5’); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 352-355, 113 S.Ct. 753, 802-804, 122 L.Ed.2d 34 (1993) (O’Connor, J., dissenting). Careful adherence to the “state action” requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or officials, responsibility for conduct which they cannot fairly be blamed. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). The Fourteenth Amendment states, “No state ... shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1 (emphasis added). The legislative history behind the Fourteenth Amendment indicates that the congressional framers were concerned with private encroachment on civil rights. See Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 Meh.L.Rev. 1323, 1329-1330 (1952). However, by holding that the Fourteenth Amendment applies to private conduct with a certain connection to state action, the Fourteenth Amendment can still reach some private conduct. But Supreme Court precedent and, moreover, the language of the Fourteenth Amendment require that some state involvement is necessary, even though it may be tangential. Some authority indicates that Congress may address purely private conduct via § 5 of the Fourteenth Amendment in spite of the fact that § 1 actions require state action. In Guest, while Justice Stevens’ opinion of" }, { "docid": "23049425", "title": "", "text": "to the assignment of the lease solely because she is female. She also alleged that defendants conspired to deprive her of her civil rights because of her sex, a violation of 42 U.S.C. § 1985(3). Finally, plaintiff alleged that defendants violated New York Executive Law § 296(5)(a)(l) (1972). Plaintiff sought a declaration of her rightful ownership of the stock and proprietary lease and an injunction preventing any wrongful interference with her peaceful possession of the premises. I. Plaintiff’s Claim Under 42 U.S.C. § 1983 For the plaintiff to prevail under 42 U.S.C. § 1983 she must prove that the defendant, under color of any statute, ordinance, regulation, custom or usage of any state, has deprived her of a right secured by the Constitution and laws of the United States. Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). An act chargeable to the state is a necessary element to be pleaded and proved. Plaintiff asserts that the judgments rendered by the state court in Action # 1 and Action # 2 constitute state action for § 1983 purposes. Certainly a state court judgment can be state action. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). We must decide if within the meaning and scope of § 1983 the state court’s enforcement of the lease provision is a deprivation by state action of a right secured to plaintiff by that statute and the Constitution. In Shelley v. Kraemer, supra, 334 U.S. at 4, 68 S.Ct. at 838, the Supreme Court defined the question before it as “the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property.” The white seller in that case had agreed to sell property to a black purchaser contrary to an agreement among property owners. Another owner sought to prevent the transfer by seeking enforcement of the agreement through court action. While stating that the private restrictive agreement itself did not" }, { "docid": "22206821", "title": "", "text": "right to petition for redress of grievances; she must show, in other words, the requisite “state action.” Appellant seeks to overcome this obstacle by arguing that the use of courts to effect her eviction sufficiently implicates the state as to bring into play constitutional constraints. She relies on an unreported decision of the United States District Court for the Southern District of New York, where the court invoked just such a theory to support the issuance of a preliminary injunction restraining an alleged retaliatory rent increase. Tarver v. G. & C. Construction Corp., S.D.N.Y., November 9, 1964. There can now be no doubt that the application by the judiciary of the state’s common law, even in a lawsuit between private parties, may constitute state action which must conform to the constitutional strictures which constrain the government. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This may be so even where the court is simply enforcing a privately negotiated contract. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). But the nature and extent of the judicial involvement required to bring into play these constitutional constraints is unclear. The central case is, of course, Shelley v. Kraemer, where the Court ruled that judicial enforcement of private agreements containing restrictive covenants against selling to Negroes violated the Fourteenth Amendment’s command that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” But the contours of Shelley remain undefined and it is uncertain just how far its reasoning extends. Judge Greene declined to rest his opinion on Shelley for fear that if, for constitutional purposes, every private right were transformed into governmental action by the mere fact of court enforcement of it, the distinction between private and governmental action would be obliterated. He accepted the reasoning of Mr. Justice Black, who joined in the Shelley opinion but has since maintained that its doctrine applies only where, as in Shelley itself, the court is called upon to upset a transaction between a willing" }, { "docid": "4454904", "title": "", "text": "upon him, and the filing of a bond is necessary in order to regain immediate possession. See Town of Andrews v. Sellers, 11 Ind.App, 301, 38 N.E. 1101, 1102 (1894); § 34-1-9-8, Burns Indiana Statutes Annotated, Code Edition, and § 34-1-9.1-6, added by Acts 1973, P.L. 317. Plaintiffs urge that the Indiana statutes and common law, sanctioning the summary detention of a customer’s vehicle until he pays the repair bill (or the transfer of title pursuant to advertised sale, although that did not happen here) deprive the customer of property without procedural due process in violation of the Fourteenth Amendment. The critical issue is whether the action of defendant Money, as alleged in the complaint, fulfills the concept of “state action” under the Fourteenth Amendment and the corresponding concept, under 42 U.S.C. § 1983, of action “under color of any statute custom, or usage,’of any State.” Recognizing that it is not always easy to determine whether particular conduct is “private,” we conclude that detention pursuant to a common law or statutory mechanic’s lien by a private individual in possession of the motor vehicle does not constitute “state action” within the meaning of the Fourteenth Amendment. In Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972), the Supreme Court stated (with respect to whether there was state action for the purpose of the equal protection clause) “where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discriminations,’ ... in order for the discriminatory action to fall within the ambit of the constitutional prohibition.” At the outset, before evaluating the degree of the state’s involvement here, it is useful to note what circumstances are not before us. It is clear that Indiana law does not compel the private mechanic to retain the owner’s automobile. See e. g., Moose Lodge, supra; Adickes v. Kress & Co., 398 U.S. 144, 169, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Nor is the situation comparable to that considered in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed." }, { "docid": "18718860", "title": "", "text": "chilled their First Amendment rights. Id. at 1310. The district court granted the injunction, but the predecessor of this Court vacated the district court's order, finding that no state action was present. Id. at 1312. The Court recognized that state action had been found in situations when purely private litigation had resulted in a state court judgment that was subject to immediate enforcement by the state. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 13-14, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948) (state enforcement of a private discriminatory contract violates the Fourteenth Amendment); New York Times v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964) (exercise of state power found in application by Alabama Supreme Court of state rule of law that allegedly violated constitutional freedoms of speech and press). The common element in those cases, however, was that state action was found “after a final judgment or otherwise dispositive order on the merits had been rendered by the state court.” Henry I, 444 F.2d at 1309 (emphasis in original). In Henry I, however, there had been no final judgment entered in the state court proceeding and the Court refused to hold that the mere filing of a state law tort action could create the requisite state involvement: Judicial bodies are supposed to be neutral; perhaps their most magnificent feature is their accessibility to all claimants, no matter how unfounded those claimants’ contentions may turn out to be. To say that an open courthouse door constitutes “state action” is to assume that the party whose private suit is challenged as “state action” already has the court on his side before the adjudicatory process even commences. To apply [the test for state action] to the mere filing of a private civil complaint in a state court and conclude that “state action” results would be to demean the judicial process. It would be to forget that a court is an open forum before which each party is to have a full and fair opportunity to make his case. Only after both parties to a private civil" }, { "docid": "13202969", "title": "", "text": "private decisions. The right of equal protection must be balanced against the countervailing rights of individual freedom of association and freedom of choice that govern in private matters. A person still has the right to invite to his home only those guests whom he or she chooses, whether they be all black, white, men, women, old or young. Under the Fourth Amendment a person’s home remains his or her castle. Likewise, that person may, in a private transaction, sell his belongings to whomever he pleases. But once a property, facility or transaction becomes significantly impregnated with a state character the Equal Protection Clause controls. Burton v. Wilmington Parking Authority, supra. In determining whether state involvement has risen to the level of “significance” for state action purposes, therefore, inquiry should focus upon the alleged sphere of privacy and autonomy in need of protection from federal intervention, as well as upon the customary search for some causal relation, however tenuous, between state activity and the discrimination alleged. For instance, a state lessee may not exclude black persons from its restaurant. Burton v. Wilmington Parking Authority, 365 U. S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The use of state courts to enforce purely private easements by owners of land prohibiting black occupancy has been held to constitute state action. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). If the state engages in conduct having the effect of encouraging, tolerating or acquiescing in the discrimination, the Fourteenth Amendment may be invoked. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). Turning to the case before us, we are asked to find state action in the licensing of McSorleys’ Old Ale House under the New York State Alcoholic Beverage Control Law. No other state involvement in the policy complained of is alleged by plaintiffs. There was no state enforcement of the refusal to serve, cf. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), no use of" }, { "docid": "13202965", "title": "", "text": "issue of material fact” between the parties, 6 J. Moore, Federal Practice ¶ 56.04[1] (2d ed. 1966), plaintiffs are entitled to summary judgment if they can establish that defendant was acting under color of state law in its continuing practice of refusing service to women, and that such refusal has denied plaintiffs the equal protection of the laws secured by the Fourteenth Amendment to the Constitution. State Action Beginning with Mr. Justice Bradley’s opinion for the Court in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), the principle has become firmly embedded in our constitutional law that the Equal Protection Clause of the Fourteenth Amendment reaches “only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948). No simple or precise test for distinguishing between state action and private action has, however, yet been devised, in spite of “eight decades of metaphysical writhing around the ‘state action’ doctrine” by both courts and commentators. Black, Foreword, The Supreme Court 1966 Term, 81 Harv. L.Rev. 69, 89 (1967). Justice Bradley stated only that the requirement was for “acts done under State authority,” a standard met by “State action of every kind.” 109 U.S. 3, at 13, 11, 3 S.Ct. 18, at 22, 21. The state involvement need not be exclusive or direct, United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). It may occur through the action of a state’s executive body, its administrative and regulatory agencies, its legislature, or its courts. Lombard v. Louisiana, 373 U.S.. 267, 273, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963); Robinson v. Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); Avery v. Midland County, 390 U.S. 474, 479, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968); Shelley v. Kraemer, 334 U.S. 1, 14-15, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). The state need not expressly or specifically authorize, command or support" }, { "docid": "12622252", "title": "", "text": "has permitted, but has not in any way compelled, private individuals to utilize a lien mechanism which could not be employed directly by the state because of the proscription of the due process clause of the Fourteenth Amendment. (2) Having granted a lawful right of possession to the private repairman through the lien device, the state thereafter protects this right of possession, as it protects any lawfully acquired possession, through facially neutral criminal statutes. (3) There is no indication whatever that the officers and judges of the state criminal justice system are in any way motivated by a de sire to restrict the constitutional rights of persons against whom a “repairmen’s lien” has been asserted. Under these circumstances, we are unwilling to find the significant state involvement necessary to impute the private acts of these repairmen to the Commonwealth, even when the Commonwealth permits lienholders to collaterally assert their right to possession in the criminal courts pursuant to facially neutral criminal statutes. As Mr. Justice Harlan noted in his concurring opinion in Peterson v. City of Greenville, supra, 373 U.S. at 249, 83 S.Ct. at 1133: □ judicial enforcement is of course state action, but this is not the end of the inquiry. The ultimate substantive question is whether there has been “State action of a particular character” (Civil Rights Cases, [109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835 (1883)]) — whether the character of the State’s involvement in an arbitrary discrimination is such that it should be held responsible for the discrimination. To reach the contrary result in the instant ease would suggest that whenever the state grants protection through its criminal processes to any lawfully acquired possession, that possession, albeit by a private individual, and the means by which it was acquired, are thereby converted into state action for the purposes of the Fourteenth Amendment. We are unwilling to reach such a result, which would have the effect of further eroding the distinction between state action and private action under the Constitution. One final issue remains for discussion. Plaintiffs seek to join as an additional defendant" }, { "docid": "5309935", "title": "", "text": "unit, to intervene in a representation proceeding in order to raise the discrimination issue is questionable. Moreover, even if such an individual could intervene, the nonreviewability of certification decisions might insulate from judicial review any Board decision in favor of the union. We think certification in itself is sufficiently important that the constitutionality of the practice announced in Handy Andy should not be insulated from review. Our conclusion is reinforced by a concern that if the Board’s certification of a discriminatory union violates the Fifth Amendment, then our enforcement of a bargaining order with such a union might equally violate the Fifth Amendment. We are mindful of the Court’s observation in Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948): “[t]he Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals.” We must therefore decide whether granting enforcement of this bargaining order would deny equal protection to those who are the victims of union discrimination, particularly where those persons might otherwise be precluded from challenging the constitutionality of the order on their own behalf. We thus conclude that Bell & Howell has standing to raise the constitutional rights of victims of discrimination in this case. Although Virginian Railway implies a contrary result, that case was decided prior to a series of cases elaborating the “jus tertii” doctrine and also preceded the Supreme Court decisions holding that court enforce ment of private discrimination constitutes state action in violation of the Fourteenth Amendment. B. Section 9(c)(1) of the LMRA Section §(c)(l) of the LMRA provides, inter alia: “If the Board finds . [that] a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” Although, by its terms, § 9(c)(1) is mandatory, the Board may nonetheless deny certification to a victorious union in certain limited circumstances. The Board most often exercises this authority to deny certification when the electoral process itself is tainted. The Board may also decline to certify a" }, { "docid": "23049426", "title": "", "text": "Action # 2 constitute state action for § 1983 purposes. Certainly a state court judgment can be state action. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). We must decide if within the meaning and scope of § 1983 the state court’s enforcement of the lease provision is a deprivation by state action of a right secured to plaintiff by that statute and the Constitution. In Shelley v. Kraemer, supra, 334 U.S. at 4, 68 S.Ct. at 838, the Supreme Court defined the question before it as “the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property.” The white seller in that case had agreed to sell property to a black purchaser contrary to an agreement among property owners. Another owner sought to prevent the transfer by seeking enforcement of the agreement through court action. While stating that the private restrictive agreement itself did not violate Fourteenth Amendment rights, where the purposes of the agreements were secured only by judicial enforcement, the state was a participant within the meaning of the Fourteenth Amendment. Shelley v. Kraemer, supra, 334 U.S. at 13, 68 S.Ct. 836. The posture of the present case is significantly different from the situation in Shelley, however. The contested provision in Shelley was racially discriminatory on its face. The lease provision in question here, requiring consent of the board of directors before transfer is effective, can only be described as neutral; there is no suggestion of any prohibition of transfer of ownership on the basis of sex. Summarizing prior holdings dealing with the state action concept, the Supreme Court has stated that “where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discrimina-tions,’ ... in order for the discriminatory action to fall within the ambit of the constitutional prohibition.” Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972). This Court has recognized" }, { "docid": "10310476", "title": "", "text": "who retains or sells his customer’s car acts “under color of” Pennsylvania law and that the provisions which permit him to do so do not comport with due process requirements. The district court concluded that neither the retention nor the sale of a customer’s car by a private repairman was action “under color of” Pennsylvania law, and it therefore granted summary judgment in favor of the defendants and against each of the plaintiffs. Parks v. “Mr. Ford”, 386 F.Supp. 1251 (E.D.Pa.1975). This appeal followed. II. We are not persuaded that the retention of plaintiffs’ vehicles by the defendants pursuant to Pennsylvania’s common law garageman’s lien constitutes action “under color of” state law as required by 42 U.S.C. § 1983. In Magill v. Avonworth Baseball Conference, 516 F.2d 1328, 1330-31 (3d Cir. 1975), this Court identified three general categories of state action cases: “(1) where state courts enforced an agreement affecting private parties; (2) where the state ‘significantly’ involved itself with the private party; and (3) where there was private performance of a government function.” See also Hollenbaugh v. Carnegie Free Library, 545 F.2d 382, 383 (3d Cir. 1976). Cf. Jackson v. Metropolitan Edison Co., 483 F.2d 754, 757 (3d Cir. 1973), aff’d419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1975). Retention of the plaintiffs’ vehicles by the defendants does not fall within any of these three groups. A. It is evident that we are not here concerned with a case in which “state courts enforced an agreement affecting private parties,” since the defendants never invoked the assistance of the state courts to enforce their liens. Compare Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) (state court judgment for damages for violation of racially restrictive covenant is state action); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (state court injunction to enforce racially restrictive covenant is state action). See also Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970) (no state action where state court refused to use doctrine of cy pres to excise racial restriction" }, { "docid": "4918914", "title": "", "text": "treatment by the state. Jackson v. Metropolitan Edison Co., supra, 419 U.S. at 349, 95 S.Ct. 449; Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 172, 92 S.Ct. 1965; Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); see United Steelworkers of America v. Weber, - U.S. -, -, 99 S.Ct. 2721, 61 L.Ed.2d 400 (1979). Thus, state action is an essential element of a § 1985(3) claim premised thereon. As Justice Stevens stated in his concurring opinion in Novotny: Some privileges and immunities of citizenship, such as the right to engage in interstate travel and the right to be free of the badges of slavery, are protected by the Constitution against interference by private action, as well as impairment by state action. Private conspiracies to deprive individuals of these rights are, as this Court held in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, actionable under § 1985(c) without regard to any state involvement. Other privileges and immunities of citizenship such as the right to due process of law and the right to the equal protection of the laws are protected by the Constitution only against state action. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161. If a state agency arbitrarily refuses to serve a class of persons — Chinese Americans, for example, see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 — it violates the Fourteenth Amendment. Or if private persons take conspiratorial action that prevents or hinders the constituted authorities of any State from giving or securing equal treatment, the private persons would cause those authorities to violate the Fourteenth Amendment; the private persons would then have violated § 1985(c). If, however, private persons engage in purely private acts of discrimination — for example, if they discriminate against women or against lawyers with a criminal practice, see Dombrowski v. Dowling, 459 F.2d 190, 194-196 — they do not violate the Equal Protection Clause of the Fourteenth Amendment. The rights secured by the Equal Protection and" } ]

[ { "docid": "23007182", "title": "", "text": "F. 3d 243, 256 (CA6 2003) (“[A] finding of a likelihood of confusion forecloses a fair use defense”); and Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F. 2d 786, 796 (CA5 1983) (alleged infringers were free to use words contained in a trademark “in their ordinary, descriptive sense, so long as such use [did] not tend to confuse customers as to the source of the goods”), with Cosmetically Sealed Industries, Inc. v. Chesebrough-Pond’s USA Co., 125 F. 3d 28, 30-31 (CA2 1997) (the fair use defense may succeed even if there is likelihood of confusion); Shakespeare Co. v. Silstar Corp. of Am., Inc., 110 F. 3d 234, 243 (CA4 1997) (“[A] determination of likely confusion [does not] preclud[e] considering the fairness of use”); Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F. 3d 1055, 1059 (CA7 1995) (finding that likelihood of confusion did not preclude the fair use defense). We now vacate the judgment of the Court of Appeals. II A The Trademark Act of 1946, known for its principal proponent as the Lanham Act, 60 Stat. 427, as amended, 15 U. S. C. § 1051 et seq., provides the user of a trade or service mark with the opportunity to register it with the PTO, §§1051, 1053. If the registrant then satisfies further conditions including continuous use for five consecutive years, “the right... to use such registered mark in commerce” to designate the origin of the goods specified in the registration “shall be incontestable” outside certain listed exceptions. § 1065. The holder of a registered mark (incontestable or not) has a civil action against anyone employing an imitation of it in commerce when “such use is likely to cause confusion, or to cause mistake, or to deceive.” § 1114(l)(a). Although an incontestable registration is “conclusive evidence ... of the registrant’s exclusive right to use the . . . mark in commerce,” § 1115(b), the plaintiff’s success is still subject to “proof of infringement as defined in section 1114,” ibid. And that, as just noted, requires a showing that the defendant’s actual practice is likely to produce confusion in" } ]

[ { "docid": "5381983", "title": "", "text": "members would mistakenly believe that they were purchasing Madacy’s products while in fact they were purchasing M2 Software’s products. Before the case was submitted to the jury, SFX Entertainment (one of Madacy’s co-defendants) moved for judgment as a matter of law, arguing that SFX Entertainment was not directly involved with the alleged trademark infringement. The district court agreed and granted SFX Entertainment judgment as a matter of law on May 15, 2003. A day later, the jury returned a special verdict finding Madacy not liable. The district court entered judgment against M2 Software on May 30, 2003, and M2 Software timely filed its Amended Notice of Appeal on June 2, 2003. III. ANALYSIS M2 Software now appeals: (1) the district court’s grant of partial summary judgment in favor of Madacy; (2) the district court’s denial of M2 Software’s motion for reconsideration of partial summary judgment; (3) the district court’s entry of judgment as a matter of law for SFX Entertainment; (4) the district court’s evi-dentiary rulings on certain motions in li-mine; (5) the district court’s decision to bifurcate the trial; and (6) the district court’s jury instructions and special verdict form. Furthermore, M2 Software seeks attorneys’ fees under the Lanham Act, 15 U.S.C. § 1117. As discussed below, we affirm because the district court did not err in determining there was no likelihood of confusion between the marks. In addition, the district court acted within its discretion in managing the trial and any errors were harmless. A. The District Court’s Grant of Partial Summary Judgment This case deals with “two distinct claims in the trademark infringement context: forward confusion and reverse confusion.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir.2005). Forward confusion occurs when consumers mistakenly associate a junior user’s mark with that of a “well-known senior mark.” Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127, 1130 n. 5 (9th Cir.1998). Reverse confusion cases, however, involve consumers dealing with a senior trademark-holder believing all the while that they are doing business with a junior user. See Surfvivor Media, Inc., 406 F.3d at 630. Both" }, { "docid": "23244560", "title": "", "text": "merchandise, including t-shirts, shorts, and hats. The Survivor mark consists of the word “Survivor” in block script, and is often accompanied by the words “outwit[,] out-play[, and] outlast,” or is superimposed on a stylized graphic suggesting the location of a particular series. Survivor’s producers acknowledge awareness of Deptula’s mark. 3. Evidence of Actual Confusion After Siorvivor aired, Deptula encountered a few people who wondered whether his business was sponsored by Survivor. One retailer and one customer mistook Survivor sunscreen for Deptula’s product, and one trade show attendee thought that Deptula’s business was endorsed by Survivor’s producers. Survivor never received any complaints from confused customers, and a survey commissioned by Survivor revealed that fewer than two percent of four hundred and two sunscreen purchasers were confused by the two marks. None of Deptu-la’s customers ever returned any Surfvivor goods because of a mistaken belief that the goods they purchased were produced or endorsed by Survivor. No merchant stopped doing business with Deptula on account of confusion between the product lines. B. Procedural Background Deptula filed suit against Survivor for trademark infringement. During the course of pretrial litigation, Deptula petitioned the court for an order compelling discovery of any Survivor goods or services beyond “t-shirts, sunscreen and lip-balm.” In response, the court limited discovery to Survivor t-shirts, sunscreen and lip balm, concluding that any other evidence would be irrelevant. Survivor subsequently moved for summary judgment, which was granted on the basis that Deptula failed to present sufficient evidence to prove one of the elements of a trademark infringement claim— whether the marks are similar enough to create a “likelihood of confusion.” Be cause Deptula’s state law claims relied on the same likelihood of confusion standard as Deptula’s federal claim, the state law claims were also dismissed. Deptula filed a timely appeal. II. STANDARDS OF REVIEW The decision to grant summary judgment in a trademark infringement claim is reviewed de novo, and all reasonable inferences are to be drawn in favor of the non-moving party. See Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir.1998). We may affirm on" }, { "docid": "11790050", "title": "", "text": "the expert opinions offered,” the district court excluded all of Fortune’s proffered expert evidence. Without any of Fortune’s expert evidence before it, the district court granted Victoria’s Secret’s motion for summary judgment, holding that the factors used to determine whether there is a likelihood of confusion “weigh[ed] in favor of Victoria’s Secret,” and that Fortune’s claims were “entirely barred by the fair use defense.” Fortune brought this timely appeal. II The Lanham Act creates a comprehensive framework for regulating the use of trademarks and protecting them against infringement, dilution, and unfair competition. 15 U.S.C. § 1051 et seq. To prove infringement, a trademark holder must show that the defendant’s use of its trademark “is likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1125(a)(l)-(a)(l)(A). Protecting against a likelihood of confusion — what we have called the “core element of trademark infringement,” Brookfield Commc’ns v. W. Coast Entm’t Corp., 174 F.3d 1036, 1053 (9th Cir.1999) (quotation marks omitted)— comports with the underlying purposes of trademark law: “[1] ensuring that owners of trademarks can benefit from the goodwill associated with their marks and [2] that consumers can distinguish among competing producers.” Thane Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901 (9th Cir.2002). Eight factors, sometimes referred to as the Sleekcraft factors, guide the inquiry into whether a defendant’s use of a mark is likely to confuse consumers: (1) the similarity of the marks; (2) the strength of the plaintiffs mark; (3) the proximity or relatedness of the goods or services; (4) the defendant’s intent in selecting the mark; (5) evidence of actual confusion; (6) the marketing channels used; (7) the likelihood of expansion into other markets; and (8) the degree of care likely to be exercised by purchasers of the defendant’s product. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979). This eight-factor analysis is “pliant,” illustrative rather than exhaustive, and best understood as simply providing helpful guideposts. Brookfield Commc’ns, 174 F.3d at 1054; see E & J Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir.1992) (“This list of" }, { "docid": "5381985", "title": "", "text": "reverse and forward confusion cases require the plaintiff to demonstrate a likelihood of confusion among consumers. Therefore, to survive summary judgment on its forward confusion claim in this case, M2 Software must raise a material question of fact whether the general public and the music industry members thought that M2 Software was the source of Madacy’s CDs. Furthermore, to withstand summary judgment on its reverse confusion claim, M2 Software must demonstrate that a question of material fact remains whether music industry members believed that Ma-dacy was the source of M2 Software’s goods. The test of trademark infringement under state, federal, and common law is whether there will be a likelihood of confusion. See Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir.1994). To determine whether there is a likelihood of confusion between the parties’ allegedly related goods and services, we consider the following eight Sleekcraft factors: (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines. See AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979). Some Sleekcraft factors “are much more important than others, and the relative importance of each individual factor will be case specific.” Brookfield, 174 F.3d at 1054. In essence, “[t]he test for likelihood of confusion is whether a ‘reasonably prudent consumer’ in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.” Dreamwerks Prod. Group, Inc., 142 F.3d at 1129. The district court did not analyze each Sleekcraft factor separately. Instead, the district court discussed each factor “in the context of the facts that are marshaled by each side.” The district court granted partial summary judgment in favor of Ma-dacy. The court ruled as a matter of law (1) that there was no likelihood of forward confusion among either general consumers or music industry members," }, { "docid": "22969238", "title": "", "text": "of EMI’s trademark infringement claim in dispute is whether Smith’s use of the terms “EntrepreneurPR,” “Entrepreneur Illustrated,” and “entrepreneurpr.com” are “likely to cause confusion” as to their “origin, sponsorship, or approval.” Id. “The test for likelihood of confusion is whether a ‘reasonably prudent consumer’ in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.” Dreamwerks Production Group, Inc. v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir.1998). In AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979), this court developed an eight-factor test “intended to guide the court in assessing the basic question of likelihood of confusion.” E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir.1992). The Sleekcraft factors, as applied to this case, are: 1. The strength of EMI’s trademark; 2. The similarity of the marks; 3. The proximity or relatedness of the goods or services; 4. Smith’s intent in selecting the marks; 5. Evidence of actual confusion; 6. The marketing channels used; 7. The likelihood of expansion of product lines; and, 8. The degree of care consumers are likely to exercise. Sleekcraft, 599 F.2d at 348-49. The ultimate question of likelihood of confusion “is predominantly factual in nature,” as is each factor within the Sleekcraft likelihood of confusion test. Wendt, 125 F.3d at 812. Although the Sleekcraft test plays an important role in the analysis of whether a likelihood of confusion exists, “[i]t is the totality of facts in a given case that is dispositive.” Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987). After applying the Sleekcraft analysis, we agree with the district court’s ultimate finding of likelihood of confusion as a matter of law only as to the use of the mark “Entrepreneur Illustrated” on the cover of EntrepreneurPR’s printed publication. We therefore reverse the grant of summary judgment and remand except as to that issue; we affirm the grant of summary judgment on the question whether Smith infringed EMI’s trademark by his use of the mark “Entrepreneur Illustrated ” on the cover" }, { "docid": "23244577", "title": "", "text": "the facts of this case does not raise a material issue of fact regarding actual confusion between the Surfvivor and Survivor marks. The trial court’s entry of summary judgment in favor of Survivor was appropriate, and its discovery rulings were well within its discretionary boundaries. Because Deptula did not raise a forward confusion claim in his complaint, and did not seek leave to amend, his forward confusion claim was not preserved. AFFIRMED. Each party is to bear its costs on appeal. . Deptula contends that in Cacique, Inc. v. Robert Reiser & Co., Inc., 169 F.3d 619, 622 (9th Cir.1999), we held that a denial of discovery on relevancy grounds involves a question of law reviewed de novo. Deptula posits that determining the relevance of the evidence in a trademark infringement case requires an interpretation of whether his and Survivor's goods are \"related,” which he regards as a legal issue. We disagree. Cacique required de novo review because the relevance of the evidence in that case depended upon an interpretation of state law. See Cacique, 169 F.3d at 622. The district court’s interpretation of state law is a question of law reviewed de novo. See Gibson v. County of Riverside, 132 F.3d 1311, 1312 (9th Cir.1997). . We take this opportunity to clarify an apparent inconsistency in our caselaw. The district court did not examine the strength of the senior Surfvivor mark, relying on our holding in Walter v. Mattel, Inc., 210 F.3d 1108, 1111 n. 2 (9th Cir.2000), that \"the inquiry[in reverse confusion cases] focuses on the strength of the junior mark because the issue is whether the junior mark is so strong as to overtake the senior mark.” We understand the district court’s confusion, as Walter could be read to imply that the strength of the plaintiff's senior mark is irrelevant in reverse confusion cases. See Walter, 210 F.3d at 1111 n. 2. However, Walter contained no express holding regarding the irrelevancy of the senior mark. Accordingly, we adhere to the approach in the case that introduced the reverse confusion concept in this circuit, Dreamwerks, 142 F.3d at" }, { "docid": "3741610", "title": "", "text": "an overly expansive understanding of the relevant market. It is difficult to see who exactly could not be included as a “non-purchasing consumer” under their interpretation of this concept, which apparently includes those who sell to, as well as buy from, the entity. They cite to no case law or relevant authority expressly recognizing such an open-ended concept. On the contrary, they actually acknowledge that “[t]he relevant group for showing confusion is the ‘consuming public’ for the particular good or service — that is, consumers who are actually in the market for the good or service at issue.” (Appellants’ Brief at 23 (citing Thane, 305 F.3d at 903)). Just as the relevant consumer in a case involving a website selling luxury cars is a reasonably prudent person accustomed to shopping online, see Toyota, 610 F.3d at 1176, the relevant consumer for purposes of an incubation business is the start-up enterprise that hires (and pays) the incubator for its various services. We also recognize that a court conducting a trademark analysis should focus its attention on the relevant consuming public. “ ‘The test for likelihood of confusion is whether a “reasonably prudent consumer” in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.’ ” Entrepreneur, 279 F.3d at 1140 (quoting Dreamwerks, 142 F.3d at 1129). Accordingly, “ ‘[trademark infringement protects only against mistaken purchasing decisions and not against confusion generally.’ ” Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 677 (9th Cir.2005) (emphasis omitted) (quoting Lang v. Ret. Living Publ’g Co., 949 F.2d 576, 582-83 (2d Cir.1991)); accord Accuride Int’l, Inc. v. Accuride Corp., 871 F.2d 1531, 1535 & n. 5 (9th Cir.1989) (explaining that “likelihood of confusion” analysis must remain focused “upon confusion in the marketplace, as opposed to generalized public confusion,” and that “[u]nless prospective purchasers of All’s goods are confused, there is ... no cause of action”). In the end, “consumer confusion” constitutes “the sine qua non of trademark infringement.” Entrepreneur, 279 F.3d at 1142; see also id. at 1149 (same); id. at 1154 (describing" }, { "docid": "12870290", "title": "", "text": "the district court granted Amazon’s motion for summary judgment. II. Jurisdiction and Standard of Review We have jurisdiction pursuant to 28 U.S.C. § 1291. “The decision to grant summary judgment in a trademark infringement claim is reviewed de novo, and all reasonable inferences are to be drawn in favor of the non-moving party.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir.2005). “Although disfavored in trademark infringement cases, summary judgment may be entered when no genuine issue of material fact exists.” Id. Indeed, in several trademark cases, we have concluded that there is no likelihood of confusion as a matter of law and affirmed the district court’s grant of summary judgment in favor of the defendant. See, e.g., One Indus., LLC v. Jim O’Neal Distrib., 578 F.3d 1154, 1162-65 (9th Cir.2009); M2 Software, Inc. v. Madacy Entm’t, 421 F.3d 1073, 1080-85 (9th Cir.2005); Surfvivor Media, 406 F.3d at 631-34. III. Discussion To prevail on a claim of trademark infringement under the Lanham Act, “a trademark holder must show that the defendant’s use of its trademark ‘is likely to cause confusion, or to cause mistake, or to deceive.’ ” Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., 618 F.3d 1025, 1030 (9th Cir.2010) (quoting 15 U.S.C. § 1125(a)(1)-(a)(1)(A)). “The test for likelihood of confusion is whether a ‘reasonably prudent consumer’ in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.” Dreamwerks Prod. Group v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir.1998). “The confusion must ‘be probable, not simply a possibility.’ ” Murray v. Cable NBC, 86 F.3d 858, 861 (9th Cir.1996). Here, the district court was correct in ruling that there is no likelihood of confusion. Amazon is responding to a customer’s inquiry about a brand it does not carry by doing no more than stating clear ly (and showing pictures of) what brands it does carry. To whatever extent the Sleek-craft factors apply in a case such as this— a merchant responding to a request for a particular brand it does not sell" }, { "docid": "5381984", "title": "", "text": "decision to bifurcate the trial; and (6) the district court’s jury instructions and special verdict form. Furthermore, M2 Software seeks attorneys’ fees under the Lanham Act, 15 U.S.C. § 1117. As discussed below, we affirm because the district court did not err in determining there was no likelihood of confusion between the marks. In addition, the district court acted within its discretion in managing the trial and any errors were harmless. A. The District Court’s Grant of Partial Summary Judgment This case deals with “two distinct claims in the trademark infringement context: forward confusion and reverse confusion.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir.2005). Forward confusion occurs when consumers mistakenly associate a junior user’s mark with that of a “well-known senior mark.” Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127, 1130 n. 5 (9th Cir.1998). Reverse confusion cases, however, involve consumers dealing with a senior trademark-holder believing all the while that they are doing business with a junior user. See Surfvivor Media, Inc., 406 F.3d at 630. Both reverse and forward confusion cases require the plaintiff to demonstrate a likelihood of confusion among consumers. Therefore, to survive summary judgment on its forward confusion claim in this case, M2 Software must raise a material question of fact whether the general public and the music industry members thought that M2 Software was the source of Madacy’s CDs. Furthermore, to withstand summary judgment on its reverse confusion claim, M2 Software must demonstrate that a question of material fact remains whether music industry members believed that Ma-dacy was the source of M2 Software’s goods. The test of trademark infringement under state, federal, and common law is whether there will be a likelihood of confusion. See Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir.1994). To determine whether there is a likelihood of confusion between the parties’ allegedly related goods and services, we consider the following eight Sleekcraft factors: (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods" }, { "docid": "4858761", "title": "", "text": "irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” 129 S.Ct. at 374. A. Masters Is Likely to Succeed on the Merits of Its Reverse Confusion Trademark Infringement Claim. Although Masters raises a variety of claims in its complaint, its request for an injunction is based solely on its claim for trademark infringement in violation of the Lanham Act. The Lanham Act prohibits the “use[] in commerce [of] any word, term, name, symbol, or device, or any com bination thereof, or any false designation of origin” that “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods.” 15 U.S.C. § 1125(a)(1)(A). In any trademark case, likelihood of confusion is the touchstone. In the typical case, the first user of a mark (the senior user), sues a later user of a confusingly similar mark (the junior user), alleging that the junior user is attempting to capitalize on the confusion created by the marks to take a free ride on the senior mark’s goodwill. In a “reverse confusion” case like this one, the senior mark seeks to “protect its business identity from being overwhelmed by a larger junior user who has saturated the market with publicity.” Cohn v. Petsmart, Inc., 281 F.3d 837, 841 (9th Cir.2002). Here, there is no question that because of widespread media exposure and Discovery’s comparatively massive marketing campaign, Cake Boss is much better known than CakeBoss, even though Discovery is the junior user of the mark. In a reverse confusion case, a senior user of a mark cannot merely point to the success of a junior user; likelihood of confusion remains the key. The question is whether consumers are likely to mistakenly believe that Masters’ CakeBoss products are “somehow affiliated with or sponsored by” Cake Boss. Cohn, 281 F.3d at 841; Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127, 1130" }, { "docid": "2979880", "title": "", "text": "complete defense to allegations of infringement of both the “All-in-One” and “The Write Choice” trademarks. Market-quest timely appealed. STANDARD OF REVIEW We review the district court’s grant of summary judgment de novo. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005) (KP Permanent II). We view the evidence in the light most favorable to Marketquest and determine “whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. We are mindful that “summary judgment is generally disfavored in the trademark arena” due to “the intensely factual nature of trademark disputes.” Id. (quoting Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1140 (9th Cir. 2002)). ANALYSIS I. Marketquest’s pleading was adequate to support a cause of action for trademark infringement under a reverse confusion theory of likely confusion. The Lanham Act provides a cause of action for the owner of a registered trademark against any person who, without consent of the owner, uses the trademark in commerce in connection with the sale or advertising of goods or services, when such use is likely to cause confusion. 15 U.S.C. § 1114(1). The validity of Marketquest’s trademarks is not disputed in this appeal. Thus, the question is whether there is a likelihood of confusion; that is, whether Defendants’ “actual practice^ were] likely to produce confusion in the minds of consumers about the origin of the goods ... in question.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004) (KP Permanent I). We have recognized two theories of consumer confusion that support a claim of trademark infringement: forward confusion and reverse confusion. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005). “Forward confusion occurs when consumers believe that goods bearing the junior mark came from, or were sponsored by, the senior mark holder.” Id. For example, consumers would experience forward confusion if they believed that Defendants’ 2011 cata-logue came from Marketquest because it featured the phrase “AU-in-One.” “By contrast, reverse confusion occurs" }, { "docid": "4166178", "title": "", "text": "Competition The operative complaint alleges that all three defendants (1) committed trademark infringement, in violation of the Lanham Act, 15 U.S.C. § 1114, and (2) engaged in unfair competition, in-violation of § 1125(a). To prevail on its infringement and unfair competition claims, plaintiff must prove “that it had a valid, protec-tible trademark and that the defendant’s use of a colorable imitation of the trademark is likely to cause confusion among consumers,” Synergistic Int’l, LLC v. Korman, 470 F.3d 162, 171 (4th Cir. 2006) (brackets omitted). Of course, the touchstone of a trademark infringement claim is whether “the defendant’s actual practice is likely to produce confusion in the minds of consumers about the origin of the goods or services in question.” George & Co., LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 393 (4th Cir. 2009) (quoting CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263, 267 (4th Cir. 2006)). Put differently, courts “look to how the two parties actually use their marks in the marketplace to determine whether the defendant’s use is likely to cause confusion.” Id. Here, defendants are entitled to summary judgment because, “based on the undisputed facts in the summary judgment record, no reasonable jury could find a likelihood of confu-sión!).]” Renaissance Greeting Cards, Inc. v. Dollar Tree Stores, Inc., 405 F.Supp.2d 680, 699 (E.D. Va. 2005) (finding no confusion between companies using the “Renaissance” mark on gift bags given (1) “[t]he common and frequent use of the ... mark” by others, (2) plaintiffs “de minimis share of the retail market and paltry advertising efforts,” (3) the “absence of any evidence of [defendant’s intent to confuse, and (4) the de minimis evidence of actual consumer confusion).' aff'd, 227 Fed.Appx. 239 (4th Cir. 2007). Courts have recognized two forms of confusion in trademark infringement cases: “forward” confusion and “reverse” confusion. The traditional pattern of forward confusion occurs “when customers mistakenly think that the junior user’s goods or services are from the same source as or connected with the senior user’s goods or services.” 4 McCarthy on Trademarks and Unfair Competition § 23:10 (4th ed. 2017). Applied" }, { "docid": "23244562", "title": "", "text": "any basis finding support in the record. Commonwealth of the Northern Mariana Islands v. United States, 399 F.3d 1057, 1060 (9th Cir.2005). Although disfavored in trademark infringement cases, summary judgment may be entered when no genuine issue of material fact exists. See Thane Int'l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901-02 (9th Cir.2002). Discovery rulings are reviewed for an abuse of discretion. See Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir.1998). This standard also applies to rulings regarding the relevance of evidence. See id. III. ANALYSIS Deptula asserts infringement claims under the Lanham Act, 15 U.S.C. § 1114, and related state law claims. A successful trademark infringement claim under the Lanham Act requires a showing that the claimant holds a protectable mark, and that the alleged infringer’s imitating mark is similar enough to “cause confusion, or to cause mistake, or to deceive.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., — U.S. -, -, 125 S.Ct. 542, 547, 160 L.Ed.2d 440 (2004) (citation omitted). The test for “likelihood of confusion” requires the factfinder to determine whether a “reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.” Dreamwerks, 142 F.3d at 1129 (internal quotation marks omitted). We have recognized two distinct claims in the trademark infringement context: forward confusion and reverse confusion. See id. at 1130 n. 5. Forward confusion occurs when consumers believe that goods bearing the junior mark came from, or were sponsored by, the senior mark holder. See id. at 1129-30 & n. 5. To avoid summary judgment on a forward confusion claim, Deptula must raise a material question of fact regarding whether the buying public thought that Surfvivor was either the source of, or was sponsoring, the television show and its product line. By contrast, reverse confusion occurs when consumers dealing with the senior mark holder believe that they are doing business with the junior one. See id. To survive a summary judgment motion on a reverse confusion claim, a question of material fact would" }, { "docid": "23244564", "title": "", "text": "have to be raised as to whether consumers believed that Survivor was either the source of, or was a sponsor of, Deptula’s wares. We address each the ory in turn, and then discuss the disposition of Deptula’s state law claims, and motion to compel discovery. A. Forward Confusion Claim We need not determine whether Deptula raised a material issue of fact on the forward confusion claim. Deptula may not proceed on this theory because he failed to reference it in his complaint. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929-30 (9th Cir.2004) (upholding dismissal of a claim where the complaint contained no facts in support of that claim). Deptula did not seek an opportunity to amend his complaint, relying instead on his argument that he sufficiently pled a claim for forward confusion. Accordingly, Deptula has no cognizable “forward confusion” claim to review on appeal. See id. B. Reverse Confusion Claim To analyze likelihood of confusion, we consider the following eight factors, generally referred to as the Sleek-craft factors: (1) strength of the mark(s); (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels; (6) degree of consumer care; (7) the defendants’ intent; (8) likelihood of expansion. Dreamwerks, 142 F.3d at 1129 (citing to AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49) (9th Cir.1979) (“Sleekcraft”). The test is a fluid one and the plaintiff need not satisfy every factor, provided that strong showings are made with respect to some of them. See id. at 1129-30, 1132 (allowing case to proceed past summary judgment where the plaintiff overwhelmingly satisfied three Sleekcraft factors). 1. Strength of the Mark(s) i. The Strength of the Senior (Surfvi-vor) Mark The purpose of examining the strength of the plaintiffs mark is to determine the scope of trademark protection to which the mark is entitled. Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1141 (9th Cir.2002). The more unique the mark, the greater the degree of protection. See id. Trademarks are divided into five categories. The two strongest sets of marks are “arbitrary” and “fanciful”" }, { "docid": "23244563", "title": "", "text": "confusion” requires the factfinder to determine whether a “reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.” Dreamwerks, 142 F.3d at 1129 (internal quotation marks omitted). We have recognized two distinct claims in the trademark infringement context: forward confusion and reverse confusion. See id. at 1130 n. 5. Forward confusion occurs when consumers believe that goods bearing the junior mark came from, or were sponsored by, the senior mark holder. See id. at 1129-30 & n. 5. To avoid summary judgment on a forward confusion claim, Deptula must raise a material question of fact regarding whether the buying public thought that Surfvivor was either the source of, or was sponsoring, the television show and its product line. By contrast, reverse confusion occurs when consumers dealing with the senior mark holder believe that they are doing business with the junior one. See id. To survive a summary judgment motion on a reverse confusion claim, a question of material fact would have to be raised as to whether consumers believed that Survivor was either the source of, or was a sponsor of, Deptula’s wares. We address each the ory in turn, and then discuss the disposition of Deptula’s state law claims, and motion to compel discovery. A. Forward Confusion Claim We need not determine whether Deptula raised a material issue of fact on the forward confusion claim. Deptula may not proceed on this theory because he failed to reference it in his complaint. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929-30 (9th Cir.2004) (upholding dismissal of a claim where the complaint contained no facts in support of that claim). Deptula did not seek an opportunity to amend his complaint, relying instead on his argument that he sufficiently pled a claim for forward confusion. Accordingly, Deptula has no cognizable “forward confusion” claim to review on appeal. See id. B. Reverse Confusion Claim To analyze likelihood of confusion, we consider the following eight factors, generally referred to as the Sleek-craft factors: (1) strength of" }, { "docid": "23244576", "title": "", "text": "this case, considered the letter briefs that were filed by the parties on this issue and the discovery that had been conducted by the parties. In response to Interrogatories, Deptula explicitly identified t-shirts, sunscreen and lip balm as the infringing products. Litigants “may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” Fed.R.Civ.P. 26(b)(1). Relevant information for purposes of discovery is information “reasonably calculated to lead to the discovery of admissible evidence.” Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir.1992) (citation omitted). District courts have broad discretion in determining relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002). The issue in this case is whether Survivor’s related products infringe on Surfvivor’s senior mark. Surfvivor itself identified the related infringing products as t-shirts, sunscreen and lip balm. The magistrate judge acted well within her discretion in limiting discovery to those matters Surfvivor itself had identified as the related infringing products. IV. CONCLUSION Application of the Sleekcraft factors to the facts of this case does not raise a material issue of fact regarding actual confusion between the Surfvivor and Survivor marks. The trial court’s entry of summary judgment in favor of Survivor was appropriate, and its discovery rulings were well within its discretionary boundaries. Because Deptula did not raise a forward confusion claim in his complaint, and did not seek leave to amend, his forward confusion claim was not preserved. AFFIRMED. Each party is to bear its costs on appeal. . Deptula contends that in Cacique, Inc. v. Robert Reiser & Co., Inc., 169 F.3d 619, 622 (9th Cir.1999), we held that a denial of discovery on relevancy grounds involves a question of law reviewed de novo. Deptula posits that determining the relevance of the evidence in a trademark infringement case requires an interpretation of whether his and Survivor's goods are \"related,” which he regards as a legal issue. We disagree. Cacique required de novo review because the relevance of the evidence in that case depended upon an interpretation of state law. See Cacique," }, { "docid": "20570747", "title": "", "text": "[registered owner] ... use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. It is undisputed that Volkswagen and Audi own the registered trademarks at issue, and that Auto Gold uses those trademarks in commerce, without their consent, and in connection with the sale of goods. Thus, as with many infringement claims, the central issue is whether Auto Gold’s use of the marks is “likely to cause confusion” within the meaning of the Lanham Act. Before us on appeal are the parties’ cross-motions for summary judgment on the issue of trademark infringement, and in particular, the district court’s determination that Volkswagen and Audi had not offered any evidence showing a likelihood of confusion. We review de novo the district court’s decision on summary judgment. Clicks Billiards, 251 F.3d at 1257. Because the likelihood of confusion is often a fact-intensive inquiry, courts are generally reluctant to decide this issue at the summary judgment stage. Thane Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901-02 (9th Cir.2002). However, in cases where the evidence is clear and tilts heavily in favor of a likelihood of confusion, we have not hesitated to affirm summary judgment on this point. See, e.g., Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1019 (9th Cir.2004) (affirming summary judgment where the marks were “legally identical,” the goods at issue were related, and the marketing channels overlapped). As part of our de novo review, we conclude as a matter of law that likelihood of confusion is clear cut here and that Volkswagen and Audi have made out a prima facie case of infringement. We do not direct judgment on this issue, however, because the district court reserved judgment on Auto Gold’s defense of “first sale.” The case must be remanded for consideration of Auto Gold’s defenses. A “[l]ikelihood of confusion ‘exists when customers viewing [a] mark would" }, { "docid": "22969237", "title": "", "text": "125 F.3d 806, 809-10 (9th Cir.1997). “Because of the intensely factual nature of trademark disputes, summary judgment is generally disfavored in the trademark arena.” Interstellar, 184 F.3d at 1109 (citing Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1356 n. 5 (9th Cir.1985)). B. The Trademark Infringement Claim “The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers.” Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 198, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). To achieve these goals, the Act allows for civil liability against “[a]ny person who, on or in connection with any goods or services, ... uses in commerce any word, term, name, symbol, or device, or any combination thereof ..., which (A) is likely to cause confusion ... as to the origin, sponsorship, or approval” of the goods or services. 15 U.S.C. § 1125(a)(1) (emphasis added). The only element of EMI’s trademark infringement claim in dispute is whether Smith’s use of the terms “EntrepreneurPR,” “Entrepreneur Illustrated,” and “entrepreneurpr.com” are “likely to cause confusion” as to their “origin, sponsorship, or approval.” Id. “The test for likelihood of confusion is whether a ‘reasonably prudent consumer’ in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.” Dreamwerks Production Group, Inc. v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir.1998). In AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979), this court developed an eight-factor test “intended to guide the court in assessing the basic question of likelihood of confusion.” E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir.1992). The Sleekcraft factors, as applied to this case, are: 1. The strength of EMI’s trademark; 2. The similarity of the marks; 3. The proximity or relatedness of the goods or services; 4. Smith’s intent in selecting the marks; 5. Evidence of actual confusion; 6. The marketing channels used; 7." }, { "docid": "23244561", "title": "", "text": "against Survivor for trademark infringement. During the course of pretrial litigation, Deptula petitioned the court for an order compelling discovery of any Survivor goods or services beyond “t-shirts, sunscreen and lip-balm.” In response, the court limited discovery to Survivor t-shirts, sunscreen and lip balm, concluding that any other evidence would be irrelevant. Survivor subsequently moved for summary judgment, which was granted on the basis that Deptula failed to present sufficient evidence to prove one of the elements of a trademark infringement claim— whether the marks are similar enough to create a “likelihood of confusion.” Be cause Deptula’s state law claims relied on the same likelihood of confusion standard as Deptula’s federal claim, the state law claims were also dismissed. Deptula filed a timely appeal. II. STANDARDS OF REVIEW The decision to grant summary judgment in a trademark infringement claim is reviewed de novo, and all reasonable inferences are to be drawn in favor of the non-moving party. See Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir.1998). We may affirm on any basis finding support in the record. Commonwealth of the Northern Mariana Islands v. United States, 399 F.3d 1057, 1060 (9th Cir.2005). Although disfavored in trademark infringement cases, summary judgment may be entered when no genuine issue of material fact exists. See Thane Int'l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901-02 (9th Cir.2002). Discovery rulings are reviewed for an abuse of discretion. See Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir.1998). This standard also applies to rulings regarding the relevance of evidence. See id. III. ANALYSIS Deptula asserts infringement claims under the Lanham Act, 15 U.S.C. § 1114, and related state law claims. A successful trademark infringement claim under the Lanham Act requires a showing that the claimant holds a protectable mark, and that the alleged infringer’s imitating mark is similar enough to “cause confusion, or to cause mistake, or to deceive.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., — U.S. -, -, 125 S.Ct. 542, 547, 160 L.Ed.2d 440 (2004) (citation omitted). The test for “likelihood of" }, { "docid": "2979881", "title": "", "text": "with the sale or advertising of goods or services, when such use is likely to cause confusion. 15 U.S.C. § 1114(1). The validity of Marketquest’s trademarks is not disputed in this appeal. Thus, the question is whether there is a likelihood of confusion; that is, whether Defendants’ “actual practice^ were] likely to produce confusion in the minds of consumers about the origin of the goods ... in question.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004) (KP Permanent I). We have recognized two theories of consumer confusion that support a claim of trademark infringement: forward confusion and reverse confusion. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005). “Forward confusion occurs when consumers believe that goods bearing the junior mark came from, or were sponsored by, the senior mark holder.” Id. For example, consumers would experience forward confusion if they believed that Defendants’ 2011 cata-logue came from Marketquest because it featured the phrase “AU-in-One.” “By contrast, reverse confusion occurs when consumers dealing with the senior mark holder believe that they are doing business with the junior one.” Id. For example, consumers would experience reverse confusion if they did business with Market-quest, but believed that they were doing business with Defendants, because they had come to associate the words “All-in-One” with Defendants. Marketquest argues that this is a “reverse confusion case,” while Defendants counter that Marketquest did not adequately plead reverse confusion. Our circuit has not previously addressed the pleading standard required to state a cause of action for trademark infringement under a reverse confusion theory. We now hold that reverse confusion is not a separate claim that must be specifically pleaded, but instead is a theory of likely confusion that may be alleged by itself or in addition to forward confusion. Accord Dorpan, S.L. v. Hotel Melia, Inc., 728 F.3d 55, 65 n.12 (1st Cir. 2013) (“‘Reverse confusion’ is not a separate legal claim requiring separate pleading. Rather, it is a descriptive term referring to certain circumstances that can give rise to a likelihood" } ]

[ { "docid": "8662441", "title": "", "text": "PER CURIAM: Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I. The district court held that four Negro teachers employed by the Madison Parish school system had been dismissed in violation of the holding in United States v. Jefferson County Board of Education, 372 F.2d 836, aff’d with modifications on rehearing en banc, 380 F.2d 385, cert. denied sub nom, Caddo Parish School Bd. v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967). In so holding, the district court denied the school teachers’ motion for attorneys’ fees. That denial is the sole question raised on appeal. Attorneys’ fees are historically beyond the scope of taxable costs. Globemaster, Inc. v. Magic Am. Corp., 6 Cir. 1967, 386 F.2d 420. Their award necessarily requires a permitting statute, a contractual obligation, or an equitable discretion in the trial court. Brisacher v. Tracy Collins Trust Company, 10 Cir. 1960, 277 F.2d 519. The trial court found that the teachers’ dismissals were not “unreasonable and obdurately obstinate” and accordingly did not tax attorneys’ fees against the school board. See Bradley v. School Board of City of Richmond, Virginia, 4 Cir. 1965, 345 F.2d 310. We find no compelling circumstances to justify overturning the trial court’s discretion in refusing to award attorneys’ fees. We affirm. See Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14; Harrington v. Texaco, 5 Cir. 1964, 339 F.2d 814. Affirmed. . The Civil Rights Act of 1964, Title II, specifically allows attorneys’ fees in cases filed to redress discrimination in Pub-lie Accommodation Actions. The Act provides no legal basis for attorneys’ fees in school desegregation cases. Kemp v. Beasley, supra," } ]

[ { "docid": "941429", "title": "", "text": "considered necessary and in the best interest of the program which they administer, little realizing that at some later date the courts, with the advantage of hindsight, will declare their handiwork violative of the equal protection clause of the Fourteenth Amendment. In the past several years legal thought regarding laws and regulations affecting individual rights and liberties have changed rapidly; that which was permissible a few years ago is no longer acceptable; the Bill of Rights has indeed become a living Bill of Rights. This fluid situation makes it inevitable that governmental bodies will sometimes run afoul of modern constitutional requirements. When this occurs, assuming the absence of bad faith and discriminatory purpose, full justice can usually be accomplished through the application of time tested legal and equitable remedies without resorting to drastic prophylactic measures designed as much to deter future conduct by the defendants and others as simply to right the wrong which befell a particular plaintiff. ATTORNEYS’ FEES Although plaintiff’s complaint included a prayer for attorneys’ fees, there is a total void in the record as to that issue until this appeal. The district court’s summary judgment order and summary judgment discussed and ruled upon the question of back pay but omitted even mentioning attorneys’ fees. Following this order and judgment plaintiff filed a motion to Alter, Amend or Reconsider the Summary Judgment Order and Judgment and this motion was likewise silent as to attorneys’ fees. The motion was overruled by the district court in its order of November 3, 1971, which order again omitted any reference to attorneys’ fees. On this appeal plaintiff complains that attorneys’ fees were not allowed. Federal district courts may, in their discretion, award attorneys’ fees in civil rights litigation where the actions of the defendants were “unreasonable and obdurately obstinate”. Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971); Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970) and Williams v. Kimbrough, 415 F.2d 874 (5th Cir. 1969). Since the District Judge never ruled on plaintiff’s demand for attorneys’ fee and since this court is" }, { "docid": "13974365", "title": "", "text": "acted obdurately and obstinately in failing to adopt an acceptable desegregation plan. See Johnson v. Combs, 471 F.2d 84, 87 & n. 4 (5th Cir.1972), cert. denied, 413 U.S. 922, 94 S.Ct. 3063, 37 L.Ed.2d 1044 (1973); Horton v. Lawrence County Board of Education, 449 F.2d 793, 794 (5th Cir. 1971); Williams v. Kimbrough, 415 F.2d 874, 875 (5th Cir.1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 753, 24 L.Ed.2d 755 (1970). However, in 1976, 42 U.S.C. § 1988 became effective. Under this statute a prevailing plaintiff should recover reasonable attorneys’ fees unless special circumstances render an award unjust. Doe v. Busbee, 684 F.2d 1375, 1378 (11th Cir.1982); Robinson v. Kimbrough, 652 F.2d 458, 464 (5th Cir.1981); Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir.1978). The statute has been held to be applicable to all cases pending prior to its enactment. Hutto v. Finney, 437 U.S. 678, 694 n. 23, 98 S.Ct. 2565, 2575 n. 23, 57 L.Ed.2d 522 (1978). Thus, the law involving attorneys’ fees changed substantially after our 1971 and 1972 decisions. As such, the doctrine of the law of the case would not apply even if these decisions were viewed as affirming the district court’s denial of attorneys’ fees. This court was faced with a similar situation in Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981). In Robinson, a jury discrimination case, the district court, in 1974, dismissed the plaintiffs’ complaint, which included a request for attorneys’ fees under section 1988. The panel reversed in part, and in remanding the case to the district court made no mention of plaintiffs’ prayer for attorneys’ fees. We then took the case en banc and partially vacated the district court’s disposition. Like the panel, however, we were silent as to the issue of attorneys’ fees. On remand, plaintiffs moved the district court for an attorneys’ fees award. The court denied the motion, in part because it interpreted our previous disposition as affirming its denial of such fees. On appeal from that order, we held that the law of the case did not apply. Noting that the previous panel’s" }, { "docid": "13974364", "title": "", "text": "rulings on attorneys’ fees, thereby postponing our review of the issue until such time as an acceptable desegregation plan was implemented. Such an appellate disposition would enable us to deal with the attorneys’ fees issue at one time, rather than examining the issue several times over various stages of the litigation. Even were we to view our earlier decisions as affirming the district court’s refusal to award attorneys’ fees, the doctrine of the law of the case would not necessarily preclude recovery of such fees in the particular situation at hand. We have previously held that the law of the case doctrine does not apply to bar reconsideration of an issue when controlling authority has since made a contrary decision of law applicable to that issue. United States v. Robinson, 690 F.2d 869, 872 (11th Cir.1982); see also Piambino, 757 F.2d at 1120; Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.1984). At the time of the 1971 and 1972 decisions, plaintiffs’ attorneys’ fees were not recoverable absent a showing that the School Board had acted obdurately and obstinately in failing to adopt an acceptable desegregation plan. See Johnson v. Combs, 471 F.2d 84, 87 & n. 4 (5th Cir.1972), cert. denied, 413 U.S. 922, 94 S.Ct. 3063, 37 L.Ed.2d 1044 (1973); Horton v. Lawrence County Board of Education, 449 F.2d 793, 794 (5th Cir. 1971); Williams v. Kimbrough, 415 F.2d 874, 875 (5th Cir.1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 753, 24 L.Ed.2d 755 (1970). However, in 1976, 42 U.S.C. § 1988 became effective. Under this statute a prevailing plaintiff should recover reasonable attorneys’ fees unless special circumstances render an award unjust. Doe v. Busbee, 684 F.2d 1375, 1378 (11th Cir.1982); Robinson v. Kimbrough, 652 F.2d 458, 464 (5th Cir.1981); Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir.1978). The statute has been held to be applicable to all cases pending prior to its enactment. Hutto v. Finney, 437 U.S. 678, 694 n. 23, 98 S.Ct. 2565, 2575 n. 23, 57 L.Ed.2d 522 (1978). Thus, the law involving attorneys’ fees changed substantially after our 1971 and 1972 decisions." }, { "docid": "941431", "title": "", "text": "not empowered to make an initial adjudication on such a claim, we remand this issue to the district court for its determination without the slightest intimation as to what his decision should be. This is the procedure we followed in Horton, supra. The allowance of such fees is within the discretion of the district court and its exercise of this discretion will not be upset on appeal in the absence of clear abuse. But, it is impossible for this court to review the soundness of such an exercise of discretion “unless the trial court indicates in its findings of fact the grounds upon which it exercised its discretion, as the trial court did in Williams v. Kimbrough, supra.” Lee, supra, 429 F.2d at 296. Accordingly, we affirm the district court’s denial of back pay, but remand on the issue of attorneys’ fees for the trial court to make an initial adjudication as to whether or not plaintiff should be awarded attorneys’ fees for the successful prosecution of the class action only. Affirmed in part, and remanded in part with directions. . Regulation No. 6Hllf of the Board provides: “Although non-tenured teachers are not eligible for maternity leave they shall comply with the requirements of the policy on maternity.” In this regard it should be pointed out that non-tenured teachers who are rehired following resignation for maternity reasons do receive privileges not accorded new teachers hired for the first time, that is, “their applications for re-employment will be given very careful consideration. Probationary teachers re-elected „ . . are granted years of service and previous status enjoyed at time of resignation.” Such being the case it would not seem at all unreasonable to expect and require non-tenured teachers resigning for maternity reasons, particularly those expecting to return, to comply with regulations governing departure from the system. . Plaintiff filed her complaint in July of 1970 at which time she was not eligible for back pay. She prayed for “back pay if, at any time after she becomes eligible for rehiring three months following the birth of her child, defendants should fail" }, { "docid": "11786409", "title": "", "text": "apathy; and, although this court hesitates to use the magic words “unreasonably and obdurately obstinate,” it appears from the record that but for the institution of this suit, the conditions of the Brazos County jail would remain as they were in 1970. In this sense, plaintiff and his private attorney have aided in effectuating important congressional and public policies. Under the “private attorney general” theory, attorney’s fees are awarded. See Gates v. Collier, 489 F.2d 298, 300, n. 1 (5th Cir. 1973); Cornist v. Richland Parish School Bd., 495 F.2d 189 (5th Cir. 1974); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972). See generally Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971). In summary then, defendant, while acting under color of law, subjected plaintiff to cruel and unusual punishment in violation of the eighth amendment. As a result of this violation, plaintiff is entitled to recover from defendant $10.00 actual damages, $1,500.00 punitive damages, and $750.00 in attorney’s fees. . Plaintiff filed a pro se complaint February 25, 1972, as a civil rights suit under 42 U.S. O.A. § 19S3. In addition to his allegations oonoering his treatment while confined in the Brazos County jail, he alleged that his plea of guilty to the offense of murder was coerced by reason of such treatment and other actions of his court-appointed attorneys and the sheriff. By order dated April 6, 1972, this court stated : “Plaintiff's complaint is styled a § 1983 Civil Rights action, but in large part it seeks relief appropriate for a habeas corpus petition. This court will, therefore, treat this complaint at least temporarily as a petition for habeas corpus and will appoint ... an attorney of this court ... to represent petitioner.” . Plaintiff testified that lie was placed in solitary several times and that out of" }, { "docid": "11786408", "title": "", "text": "Co., 398 U.S. 144, 233, 90 S.Ct. 1598, 1642, 26 L.Ed.2d 142, 197 (1970) (Brennan, concurring in part and dissenting in part). Sharing the opinion that in certain circumstances “the prospect of substantial punitive damages may be the most effective means to persuade . . . [jailors] to respect constitutional rights,” and finding that the defendant here acted with a reckless disregard of whether he was violating plaintiff’s constitutionally protected right, this court concludes that plaintiff is entitled to recover from defendant punitive damages in the amount of $1,500. Further, mindful that where federally protected rights have been invaded, “it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief,” attorney’s fees in the amount of $750 is awarded to plaintiff. The conditions of the solitary confinement cell in the Brazos County jail, although violative of Article 5115 of the Texas Revised Civil Statutes and although clearly offensive to human dignity, have long existed, perhaps as a result of public and official apathy; and, although this court hesitates to use the magic words “unreasonably and obdurately obstinate,” it appears from the record that but for the institution of this suit, the conditions of the Brazos County jail would remain as they were in 1970. In this sense, plaintiff and his private attorney have aided in effectuating important congressional and public policies. Under the “private attorney general” theory, attorney’s fees are awarded. See Gates v. Collier, 489 F.2d 298, 300, n. 1 (5th Cir. 1973); Cornist v. Richland Parish School Bd., 495 F.2d 189 (5th Cir. 1974); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972). See generally Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971). In summary then, defendant, while acting under color of law, subjected plaintiff to cruel" }, { "docid": "2548676", "title": "", "text": "exceptional case within § 285, and did not award attorneys’ fees. We, as an appellate court, cannot lightly overturn that decision. “The law placing, as it does, the discretion in the trial court to determine . . whether the case is an exceptional one so that attorneys’ fees should be allowed, appellate courts ought not to and will not interfere with the exercise of such discretion. Indeed, they may not do so unless there is such a clear abuse as to show that discretion was not exercised, or unless it is plain that the trial court’s decision is based on an erroneous concept of law.” Graham v. Jeoffroy Mfg., 5th Cir. 1958, 253 F.2d 72, 78 (Tuttle, J.). It is our conclusion that the district court did not abuse its discretion in refusing to award attorneys’ fees. Our review of the record provides no indication that Williamson-Dickie has not proceeded in good faith in this litigation, or in its dealings with the Patent Office. Under these circumstances, the trial court properly refused to award attorneys’ fees. Garrett Corp. v. American Flight Systems, Inc., 5th Cir. 1974, 502 F.2d 9. Affirmed on appeal and cross-appeal. Costs taxed to appellant. . The record was shipped to the Clerk of this Court in five tightly packed cartons, each measuring 15\" x 10\" x 12\". . Hereinafter referred to as plaintiff, its role in the court below. . Hereinafter referred to as defendants. . It is noted that on March 27, 1972, plaintiff filed a motion to amend and supplement Findings of Fact and Conclusions of Law accompanied by a memorandum in support thereof. On April 12, 1972, defendants filed a brief and memorandum in opposition thereto. On July 6, 1972, after reciting that “Plaintiffs have [sic] moved to amend the final order in 38 particulars. The court having considered the aforesaid motion along with supporting and opposing memoranda of law, and having reconsidered the record in this cause,” the court partially granted plaintiff’s motion by entering an order amending in insubstantial particulars Findings of Fact Nos. 3(5), 70 and 74. This post judgment" }, { "docid": "2993199", "title": "", "text": "Jail or consciously refused to rectify them, or both. In either case, this Court must conclude that the defendant Carson’s actions were “unreasonable and obdurately obstinate” which is the test for bad faith justifying an award of attorneys’ fees in the Fifth Circuit. Jinks v. Mays, 464 F.2d 1223 (5th Cir. 1972); Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971); Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970); Williams v. Kimbrough, 415 F.2d 874 (5th Cir. 1969); Gates v. Collier, supra, 371 F.Supp. at 1371. “Such award is within the discretion of the district court, to remain undisturbed upon appeal in the absence of clear abuse.” Gates v. Collier, supra, 371 F.Supp. at 1371; See also Jinks v. Mays, supra. This Court chooses to exercise its discretion to award the plaintiffs a reasonable attorneys’ fee because of the importance of the rights vindicated and also because of the fact that this Court specifically appointed William J. Sheppard, Esquire, to represent the plaintiffs because he was the only attorney of which this Court had knowledge who was willing to undertake the tremendous financial burden inherent in a case of this nature. Therefore, this Court concludes that the defendant Carson is liable to the plaintiffs in this case in both his official and his individual capacities for a reasonable attorneys’ fee. VI. THE AMOUNT In determining the amount of the reasonable attorneys’ fee to be awarded in this case, this Court hereby adopts the 12 guidelines set forth in the Fifth Circuit opinion in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), which was a Title VII civil rights ease. The application of these guidelines to the instant case is set forth below: (1) The time and labor required The undisputed number of hours personally spent by plaintiffs’ counsel, Wil liaxn J. Sheppard, Esquire, in out-of-court preparation as set forth by his affidavit amounts to 817.50 hours through April 30, 1975. The Court notes that many of the hours spent involved investigation, clerical work and the compilation of facts" }, { "docid": "22934881", "title": "", "text": "1965, 345 F.2d 310; Rogers v. Paul, 8 Cir.1965, 345 F.2d 117; Bell v. School Board of Powhatan County, Virginia, 4 Cir.1963, 321 F.2d 494) and especially so when one considers that much of the elimination of unlawful racial discrimination necessarily devolves upon private litigants and their attorneys, cf. Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), and the general problems of representation in civil rights cases. See Sanders v. Russell, 5 Cir.1968, 401 F.2d 241. In Williams v. Kimbrough, supra, this court recognized the equitable discretion of the trial court to award attorney’s fees in a civil rights case but found “no compelling circumstances to justify overturning the trial court’s discretion in refusing to award attorneys’ fees” where the trial court’s action was based on a finding that the defendant’s actions were not “unreasonable and obdurately obstinate”. At 875. Clearly, for this court to overturn a denial of attorneys’ fees, it must appear that the trial court abused its discretion, but it is impossible to review the soundness of such an exercise of discretion unless the trial court indicates in its findings of fact the grounds upon which it exercised its discretion, as the trial court did in Williams v. Kimbrough, supra. Here no findings of fact accompany the trial court’s refusal to allow attorneys’ fees, and, consequently, the case must be remanded for further findings sufficient to enable this court to review the denial of attorneys’ fees. We now arrive at the issue concerning notice, not raised by the plaintiffs until after judgment was entered. The Court, however, had retained jurisdiction for the effectuation of its decree. In his brief, plaintiff says: “We do not contend that notice is required in every Rule 23 class action. We contend simply that it is required in this case as a matter of- complete equitable relief.” We decide the issue from that approach. In the interest of total accuracy, we quote the following from the plaintiff’s motion: «* •* * plaintiff asks that the Court direct defendant forthwith to place an" }, { "docid": "10792424", "title": "", "text": "their equitable powers, may award attorneys’ fees when the interests of justice so require. Indeed, the power to award such fees “is part of the original authority of the chancellor to do equity in a particular situation,” Sprague v. Ticonic National Bank, 307 U.S. 161, 166 [59 S.Ct. 777, 83 L.Ed. 1184] (1939), and federal courts do not hesitate to exercise this inherent equitable power whenever “overriding considerations indicate the need for \"such a recovery.” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-392 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970); see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 [87 S.Ct. 1404, 18 L.Ed.2d 475] (1967). After reviewing the facts here, this Court is of the belief that the position of the citizen plaintiffs is analogous to that of a plaintiff in a civil rights suit, wherein it has been concluded that attorneys’ fees should be awarded unless the trial court can articulate specific reasons for a denial. See Cooper v. Allen, 467 F.2d 836, 841 (5th Cir. 1972); Lee v. Southern Home Sites Corp., 429 F.2d 290, 295 (5th Cir. 1970). In Lee, Judge Coleman stated, There is ample authority, outside the civil rights area, to support the proposition that the allowance of attorneys’ fees and expenses of preparation for trial is in the discretion of the district court sitting in equity where exceptional circumstances call for their allowance in order to do justice between the parties, ... as well as in the more traditional situations where the allowance of attorneys’ fees is provided for by statute or contract. ... In the area of civil rights, many cases have either allowed or implicitly recognized the discretionary power of a district judge to award attorneys’ fees in a proper case in the absence of express statutory provision . . . and especially so when one considers that much of the elimination of unlawful racial discrimination necessarily devolves upon private litigants and their attorneys, and the general problems of representation in civil rights cases. 429 F.2d at 295 [citations omitted]. As in the civil rights area, the" }, { "docid": "14761179", "title": "", "text": "their discretion, award attorneys’ fees in civil rights litigation where the actions of the defendants were “unreasonable and obdurately obstinate”. Lee v. Southern Home Sites Corporation, 5 Cir., 1970, 429 F.2d 290; Williams v. Kimbrough, 5 Cir., 1969, 415 F.2d 874. Nevertheless, as appellants conceded on oral argument before this court, the district judge in the case at bar has never ruled on their demand for attorneys’ fees. Since this court is not empowered to make an initial adjudication of such a claim, we remand this issue to the district court for its determination without even the slightest intimation as to whether the Board did or did not engage in such conduct as would merit an award of reasonable attorneys’ fees to appellants. Appellants’ second and final contention concerns the back pay award which the district court granted Ollie Luster. It is uncontested that Luster, a black high school principal, was unlawfully demoted to an elementary school principal-ship with a substantial decrease in pay. Accordingly, the district court ordered the Board to pay Luster the additional amount he would have received had he not been illegally demoted from his position as high school principal. However, from this award the court deducted the compensation Luster received from his job as an instructor at night in the county vocational school. In their brief appellants contend that the night employment was a secondary job, totally unrelated to Luster’s duties as an elementary school principal and that “at a time when other principals in the system are presumably at home enjoying their leisure, Luster is teaching a night class at the county’s trade system”. If this assertion is true, and Luster’s night employment actually was separate and distinct from his position as principal of the elementary school, the district court erroneously deducted the compensation. Back pay is normally an integral part of the equitable remedy of reinstatement used by the federal courts to restore aggrieved litigants to the positions they should have occupied had it not been for the unlawful deprivation of their constitutional rights. See Harkless v. Sweeny Independent School District, 5 Cir.," }, { "docid": "268423", "title": "", "text": "This Court has recognized that an award of attorneys’ fees in favor of prevailing plaintiffs in a school desegregation proceeding may be appropriate. In Horton v. Lawrence County Board of Education, 5 Cir., 1971, 449 F.2d 793, we stated: “It is settled law in this circuit that federal district courts may, at their discretion, award attorneys’ fees in civil rights litigation where the actions of the defendants were ‘unreasonable and obdurately obstinate.’ Lee v. Southern Home Sites Corporation, 5 Cir., 1970, 429 F.2d 290; Williams v. Kimbrough, 5 Cir., 1969, 415 F.2d 874. Nevertheless, as appellants conceded on oral argument before this court, the district judge in the case at bar has never ruled on their demand \"for attorneys’ fees. Since this court is not empowered to make an initial adjudication of such a claim, we remand this issue to the district court for its determination without even the slightest intimation as to whether the Board did or did not engage in such conduct as would merit an award of reasonable attorneys’ fees to appellants.” 449 F.2d at 794. We believe that in this case it is appropriate to follow the course of action taken in Horton. The district court should make the initial determination as to whether to compel the District to underwrite the plaintiffs’ attorneys’ fees under either of the theories discussed above. Either party will be able to seek review in this Court of the district court’s disposition of the claim for attorneys’ fees. CONCLUSION The judgment of the district court is reversed and the cause is remanded with directions to require the defendant Columbia Municipal Separate School District to offer • employment contracts to the appellants effectively reinstating them in the positions which they occupied prior to their dismissals at the end of the 1969-1970 school year or equivalent positions. In addition, the district court is directed to enter judgment in favor of each of the plaintiffs for back pay in the amount of compensation lost by each plaintiff as a result of the District’s unlawful refusal to renew their contracts for the 1970-1971 school year," }, { "docid": "2993198", "title": "", "text": "v. Malcolm, supra, 371 F.Supp. at 622. In addition, it has been generally the law since at least 1944 that any prisoner, whether he is sentenced or convicted, “retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.” Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944). The defendant Carson cannot seriously contend that the degrading, humiliating and blatantly unconstitutional conditions to which he and his subordinates subjected the class of plaintiffs in this case were consistent with the established legal principles and correctional standards that existed at least three or four years prior to the inception of this lawsuit in June 1974. The defendant Carson could not reasonably fail to be aware of what was transpiring in the Duval County Jail prior to and during the pendency of this lawsuit. The only conclusion that this Court can draw from the overwhelming mass of evidence in this case is that the defendant Carson must either have consciously ignored the conditions in the Duval County Jail or consciously refused to rectify them, or both. In either case, this Court must conclude that the defendant Carson’s actions were “unreasonable and obdurately obstinate” which is the test for bad faith justifying an award of attorneys’ fees in the Fifth Circuit. Jinks v. Mays, 464 F.2d 1223 (5th Cir. 1972); Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971); Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970); Williams v. Kimbrough, 415 F.2d 874 (5th Cir. 1969); Gates v. Collier, supra, 371 F.Supp. at 1371. “Such award is within the discretion of the district court, to remain undisturbed upon appeal in the absence of clear abuse.” Gates v. Collier, supra, 371 F.Supp. at 1371; See also Jinks v. Mays, supra. This Court chooses to exercise its discretion to award the plaintiffs a reasonable attorneys’ fee because of the importance of the rights vindicated and also because of the fact that this Court specifically appointed William J. Sheppard, Esquire, to represent the plaintiffs because he was the" }, { "docid": "268422", "title": "", "text": "Such an award is not commanded by the fact that substantial relief is obtained. Attorneys’ fees are appropriate only when it is found that the bringing of an action should have been unnecessary and was compelled by the school board’s unreasonable, obdurate obstinacy . . .” 345 F.2d 321. See, also, Monroe v. Board of Commissioners of City of Jackson, Tennessee, 6 Cir., 1972, 453 F.2d 259, 263 where the district court’s award of attorneys’ fees to prevailing plaintiffs in a school desegregation proceeding was upheld on appeal. The Fourth Circuit has recently relaxed its test for assessing the propriety of an award of attorneys’ fees in school desegregation matters. In Brewer v. Norfolk School Board, 4 Cir., 1972 (en banc), 456 F.2d 943, cert. denied, 1972, 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136, it was held that parents who secured the right of free bus transportation for students assigned to public schools far from their homes were entitled to an allowance for attorneys’ fees under a quasi-application of the “common fund” doctrine. This Court has recognized that an award of attorneys’ fees in favor of prevailing plaintiffs in a school desegregation proceeding may be appropriate. In Horton v. Lawrence County Board of Education, 5 Cir., 1971, 449 F.2d 793, we stated: “It is settled law in this circuit that federal district courts may, at their discretion, award attorneys’ fees in civil rights litigation where the actions of the defendants were ‘unreasonable and obdurately obstinate.’ Lee v. Southern Home Sites Corporation, 5 Cir., 1970, 429 F.2d 290; Williams v. Kimbrough, 5 Cir., 1969, 415 F.2d 874. Nevertheless, as appellants conceded on oral argument before this court, the district judge in the case at bar has never ruled on their demand \"for attorneys’ fees. Since this court is not empowered to make an initial adjudication of such a claim, we remand this issue to the district court for its determination without even the slightest intimation as to whether the Board did or did not engage in such conduct as would merit an award of reasonable attorneys’ fees to appellants.”" }, { "docid": "14761178", "title": "", "text": "had to be demoted to lower paying positions. In response to this turn of events, appellants filed motions demanding that the dual school system be abolished; that the school superintendent be held in contempt for failing to obey the court’s orders; and that several black staff members be awarded back pay for the discriminatory demotions. On December 29, 1970, the district court rendered a decision which granted most of the back pay demands (with the exception of a claim to be noted later), and required the Board to immediately dismantle its dual school system, 320 F.Supp. 790. The court declined to hold the superintendent in contempt, but it did state that the defendant school officials had employed a “subterfuge for perpetuating a dual school system” and that “defendants have totally defaulted in the representation made by them to this Court, namely, that authorization of administrative units would not result in any facility becoming identified as a school for one race or another”. It is settled law in this circuit that federal district courts may, at their discretion, award attorneys’ fees in civil rights litigation where the actions of the defendants were “unreasonable and obdurately obstinate”. Lee v. Southern Home Sites Corporation, 5 Cir., 1970, 429 F.2d 290; Williams v. Kimbrough, 5 Cir., 1969, 415 F.2d 874. Nevertheless, as appellants conceded on oral argument before this court, the district judge in the case at bar has never ruled on their demand for attorneys’ fees. Since this court is not empowered to make an initial adjudication of such a claim, we remand this issue to the district court for its determination without even the slightest intimation as to whether the Board did or did not engage in such conduct as would merit an award of reasonable attorneys’ fees to appellants. Appellants’ second and final contention concerns the back pay award which the district court granted Ollie Luster. It is uncontested that Luster, a black high school principal, was unlawfully demoted to an elementary school principal-ship with a substantial decrease in pay. Accordingly, the district court ordered the Board to pay Luster the" }, { "docid": "22465371", "title": "", "text": "(affirming award of attorney’s fees under 28 U.S.C. § 1927 for case that “should never have been filed”), modified, 722 F.2d 209 (5th Cir.), cert. denied, — U.S.-, 104 S.Ct. 2690, 81 L.Ed.2d 884 (1984). Grant argues that it is entitled to attorney’s fees under both the equitable and statutory rules, as well as under Fed. R.Civ.P. 11, which allows a court to take “appropriate disciplinary action” against attorneys who willfully file false pleadings. Although an award of attorney’s fees, like an award of costs, is committed to the discretion of the trial court and can only be reversed for an abuse of discretion, Warren v. Reserve Fund, Inc., 728 F.2d 741, 748 (5th Cir.1984), the trial court must give reasons for its decisions regarding attorney’s fees; otherwise, we cannot exercise meaningful review. Lee v. Southern Home Sites Corp., 429 F.2d 290, 296 (5th Cir.1970); cf. Commonwealth Oil Refining Co. v. EEOC, 720 F.2d 1383 (5th Cir.1983) (remanding denial of attorney’s fees under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5(k), for statement of reasons by district court); Neidhardt v. D.H. Holmes Co., 701 F.2d 553, 555 (5th Cir.1983) (same). A statement of reasons is one of the handmaidens of judging. Where a district court fails to explain its decision to deny attorney’s fees, we do not know whether the decision was within the bounds of its discretion or was based on an erroneous legal theory. In such eases, therefore, we must remand for further findings by the district court. Lee, 429 F.2d at 296. Here, Grant made a colorable claim for attorney’s fees, arguing that the appellees knew or should have known of the falsity of essential factual allegations in their complaint See Kinnear-Weed Corp. v. Humble Oil & Refining Co., 324 F.Supp. 1371, 1382-84 (S.D.Tex.1969) (awarding attorney’s fees where plaintiff made allegations that it knew or should have known were false), aff'd, 441 F.2d 631 (5th Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971). The district court nevertheless denied Grant’s motions for attorney’s fees without articulating any reasons, making any" }, { "docid": "941430", "title": "", "text": "the record as to that issue until this appeal. The district court’s summary judgment order and summary judgment discussed and ruled upon the question of back pay but omitted even mentioning attorneys’ fees. Following this order and judgment plaintiff filed a motion to Alter, Amend or Reconsider the Summary Judgment Order and Judgment and this motion was likewise silent as to attorneys’ fees. The motion was overruled by the district court in its order of November 3, 1971, which order again omitted any reference to attorneys’ fees. On this appeal plaintiff complains that attorneys’ fees were not allowed. Federal district courts may, in their discretion, award attorneys’ fees in civil rights litigation where the actions of the defendants were “unreasonable and obdurately obstinate”. Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971); Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970) and Williams v. Kimbrough, 415 F.2d 874 (5th Cir. 1969). Since the District Judge never ruled on plaintiff’s demand for attorneys’ fee and since this court is not empowered to make an initial adjudication on such a claim, we remand this issue to the district court for its determination without the slightest intimation as to what his decision should be. This is the procedure we followed in Horton, supra. The allowance of such fees is within the discretion of the district court and its exercise of this discretion will not be upset on appeal in the absence of clear abuse. But, it is impossible for this court to review the soundness of such an exercise of discretion “unless the trial court indicates in its findings of fact the grounds upon which it exercised its discretion, as the trial court did in Williams v. Kimbrough, supra.” Lee, supra, 429 F.2d at 296. Accordingly, we affirm the district court’s denial of back pay, but remand on the issue of attorneys’ fees for the trial court to make an initial adjudication as to whether or not plaintiff should be awarded attorneys’ fees for the successful prosecution of the class action only. Affirmed in part, and" }, { "docid": "10777594", "title": "", "text": "may properly deduct such contribution from its liability for back pay. In order to effectuate the policies of Title VII, it is necessary in this case to reinstate plaintiff in the position he would have held, with all its emoluments, had he not been fired in violation of Tifie VII. See 42 U.S.C. § 2000e-5(g). V. Attorney's Fees Plaintiff has prayed for an award of attorney’s fees as a part of the costs of this litigation. Title VII provides in part that: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs [of the litigation]. 42 U.S.C. § 2000e-5(k). The Court of Appeals for this circuit, as part of its obligation “to make sure that Title VII works,” has liberally applied the attorney’s fees provision of Title VII, recognizing the importance of private enforcement of civil rights legislation. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716 (5th Cir. 1974). See also Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972); Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972); Lee v. Southern Homes Sites Co., 444 F.2d 143 (5th Cir. 1971). Clearly this is an especially appropriate case for attorney’s fees, since a sizeable corporation obstinately put an individual plaintiff to the expense of full trial upon a very clear case of liability under Title VII. Both plaintiff and defendant shall within 20 days file affidavits from attorneys engaged in regular practice in this district, showing the amount of a reasonable attorney’s fee to be paid plaintiff in this case. The parties should address themselves to the applicability in this ease of the several factors discussed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Judgment will be entered accordingly. . The EEOC, as Amicus Curiae in this case, has provided this Court and all parties with copies of amended regulations which delegate to EEOC district directors the power to is sue suit letters. 29 C.F.R. § 1601.25 (1974). Furthermore, the EEOC on" }, { "docid": "15242200", "title": "", "text": "prevailing party counsel fees and other litigation expenses not ordinarily taxable as costs. See Sprague v. Ticonic National Bank, 307 U.S. 161, 164-166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). The discretion of the trial judge in this area is necessarily broad and the scope of appellate review correspondingly narrow. Applying these principles, we have concluded that the trial court acted within its discretion in declining to award attorneys’ fees. We base our decision primarily upon two grounds. First, there was substantial doubt as to the school district’s legal obligation in the circumstances of this case; the district’s resistance to plaintiffs’ demands rested upon that doubt, and not upon an obdurate refusal to implement clear constitutional rights. Second, throughout the proceedings the school district has evinced a willingness to discharge its responsibilities under the law when those duties were made clear. The school district complied with the court’s initial desegregation order, promptly submitting the “freedom of choice” plan and working to see it succeed. Following the court’s judgment of December 2, 1970, the school district proceeded without delay to formulate the “Sixth Grade Center Plan,” and was prepared to implement this plan until the judgment was stayed by the district court’s order. A different result would be appropriate if the school district had proved recalcitrant in the face of the lower court’s decree. See generally Lee v. Southern Home Sites Corp., 429 F.2d 290, 295-296 (5th Cir. 1970); Bradley v. School Board, 53 F. R.D. 28, at 38, 39 (E.D.Va.1971). YI Stay In special findings relating to the stay, the district court found that the “Sixth Grade Center Plan” could be implemented in the course of the school year without undue disruption of the educational process. Those findings, however, were entered at the beginning of the 1971-72 school term. The term is now well into its second semester. We do not know whether the findings accurately reflect the present situation. It would seem advisable, therefore, to require plaintiffs to resubmit their request that the stay be vacated to the district court where the feasibility of immediate implementation of the “Sixth" }, { "docid": "9771676", "title": "", "text": "are over 90% black and two are over 90% white. Integration in these five schools is minimal because the location in the city is such that no conceivable zoning change would produce any substantially greater integration. Regardless, however, of these salutary evidences of accomplishment, the possibility exists that even greater accomplishment might result from a further study of the situation in the light of Swann, and of Robinson and Davis. The cause will therefore be remanded to give the District Court opportunity for such consideration. The plaintiffs have also appealed from the District Court’s award of $5,000.00 attorney fees, contending that the award was too limited, both in amount and in the period for which the award was made. The defendant has cross-appealed, arguing that no award of counsel fees should have been made against them because they have not been “defiant, obstinate or unreasonably obdurate,” that they have acted in good faith in complying with the orders of the Court, and that only once have they taken an appeal from the order of the District Court. The plaintiffs are correct in asserting that counsel fees have traditionally been allowed to a prevailing party within the court’s discretion in equity cases where such allowance has been necessary to provide full relief to the prevailing party. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392, 90 S. Ct. 616, 24 L.Ed.2d 593 (1970). Counsel fees have been awarded in numerous civil rights cases: Lee v. Southern Home Sites Corp., 429 F.2d 290 (6th Cir. 1970), United States v. McLeod, 385 F.2d 734 (5th Cir. 1967), Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473, 481 (4th Cir. 1951), Dyer v. Love, 307 F.Supp. 974, 984-988 (N.D.Miss.1969), and in numerous school desegregation cases, e. g.: Cato v. Parham, 403 F.2d 12, 16 (8th Cir. 1968), Rolfe v. County Board of Education, 391 F.2d 77, 81 (6th Cir. 1968), Bradley v. School Board, 345 F.2d 310, 321 (4th Cir. 1963), Bell v. School Board of Powhatan, 321 F.2d 494, 500 (4th Cir. 1963), Pettaway v. County School Board, 230 F.Supp. 480, 487" } ]

[ { "docid": "7980970", "title": "", "text": "the rear of the machine of the rod that carries the rack, the rod being worked by a lever. An examination of the claims of the original and reissued patents shows that claim 2 of the reissue is substantially the same as claim 1 of the original; that claim 4 of the reissue is substantially the same as claim 2 of the original; and that claim 5 of the reissue is substantially the same as claim 3 of the original. The Circuit Court held that claim 2 of the reissue was infringed, although in the defendants’ machine there is no lever such as the lever H of the patent, and no equivalent or substitute for it. The view taken was, that claim 2 was infringed, because the defendants use a rod, the end of which is pushed and pulled by the hand of the operator, while in the patent the'lever IT pulls and pushes the end of the rod. But the lever, or its equivalent, as a mechanical instrument, is made an essential element in claim 2, • and dispensing with the lever, and using instead the human hand, is not the use of an equivalent, although in the plaintiffs’ machine the. hand is applied to work the lever. Water Meter Co. v. Desper, 101 U. S., 332, 337; Gage v. Herring, 107 U. S. 640, 648 ; Fay v. Cordesman, 109 U. S. 408, 420, 421; Sargent v. Hall Safe and Lock Co., 114 U. S. 63, 86. In order to determine what construction ought to be given to the other claims of the reissue, it is necessary to consider an invention made by one Powers, at Madison, \"Wisconsin, in 1862, the invention of Davis being carried back only to September, 1866. During the winter of 1861-2, and the spring of 1862, Powers was selling, at Madison, grain drills with iron drag-bars. During the season of 1862, noticing the working of drills in the field, he conceived the idea that the shoes could be put into single and double ranks by a more easy method than that then used." } ]

[ { "docid": "1998511", "title": "", "text": "the disengagement of the spiral springs from the jigs after their helical connection, this disengagement being automatically performed by a rotating cam in Gail and by manual, foot-pedal operation in Karr. The disengagement in Gail is by members exerting downward pressure on the upper ends of the helically connected springs -and pushing upward on the lower connected ends thereof to accomplish a vertical movement of the springs and holding jigs; while the disengagement in Karr is performed by manually lifting the upper jigs and lifting the springs at their lower ends. Gail provides for lifting the springs at their lower ends but reverses the movement at the upper ends by pushing the springs down. The same result, that is, the disengagement of the spring spirals, is. accomplished by equivalent mechanisms and operations. Both Karr 1,922,002 and Gail 1,905,459, produce the same result, that is, a substantially similar spring-assembly product comprising rows of spiral springs connected by helicals. Gail- proyides for a machine that is fully automatic in operation while Karr provides for a less complete machine, partially manually operated. The Karr foot-lever operation for releasing the spiral coils from the holding jigs is indicated by prior-art patent- Holtfoth 1,473,989. The Gail machine would in many particulars -appear to be a more complete machine than that of Karr. Karr apparently omitted certain of the mechanical elements of Gail and adopted all other elements, or equivalents thereof. The principal difference between the two machines is in the methods employed to open and close the holding jigs and release the spiral springs after their helical engagement. This difference represents only the varying means that different mechanics conversant with the art of forming spring ■structures might adopt for opening and closing the holding jigs and for releasing the helically connected spirals. The same results are accomplished by substantially the same means in both Gail and Karr, and the possible, minor improvements in the Karr holding-and-releasing mechanisms certainly do not constitute invention within the meaning of the-patent law. The fact that in Karr the helicals connecting the upper and lower terminal coils of adjacent spiral" }, { "docid": "6923642", "title": "", "text": "welding operations. Apparently, what is alleged to be secret is the adjustments made to that machine to produce the desired weld. This involves experimentation until the machine is set in regard to pressure and timing. It is admitted that a person skilled in the welding art, by the use of a device used by plaintiffs, also commercially available, could make the various changes in pressure and timing on the welding machine to bring about the desired result. If the tight weld mentioned by plaintiffs is due to the characteristics of the metals used, there would be no basis for the claim of trade secret because such metals have been commonly used in the manufacture of snap action devices. On the other hand, if the secret is said to be the adjustments made in the welding machine, there is no proof that the welding methods employed by plaintiffs are used by defendants. In the last of the new matters, plaintiffs assert that knowledge of the fact that the flasher units had to be manually adjusted, and that complete automation in production was not possible, would be advantageous to a competitor in that he would save the time and effort expended by Tung-Sol to ascertain this fact. This assertion borders on speculation. A competitor of Tung-Sol might well achieve complete automation in production. It is difficult to see how the “failure” to accomplish something, can be classified as confidential or a trade secret. Moreover, manual adjustment of snap action devices, such as a flasher switch, is not new. Schmidinger, in the 023 patent in suit, teaches that his snap action device can be manually adjusted by tensioning the pull ribbon. The Court is satisfied from the evidence in this case that the manufacturing operations in the mass production of the patented and accused devices differ in many material respects. As compared with the test procedures and techniques employed by plaintiffs, those used by defendants may be characterized as comparatively crude. Other considerations also have a bearing in this case. Welsh was a graduate engineer, with a degree in Electrical Engineering, when he" }, { "docid": "21660227", "title": "", "text": "equivalent of Vander-veld’s “stop means,” associated with any manually operable brake means and controlled by the operation thereof. It seems clear that claims 7 and 10 involve invention. Consideration of the specification and drawings of the Hoseh-Wheeler patent, No. 1,520,491, December 23, 1924, under which defendant’s Measuregraph machine is constructed, examination of a careful drawing of defendant’s machine, and expert testimony relating thereto, are convincing that claim 10 is infringed. We think each and every element of claim 10 reads literally and substantially upon defendant’s machine. Infringement is not avoided by the fact that in plaintiff’s device the machine is reset to zero and the throat-stop raised by a resetting lever at one side of the machine; while in defendant’s machine these operations result from pressing a reset button at the rear of the machine; nor by any other manual differences in operation. The means employed by the respective devices impress us as mechanical equivalents of each other. The only meritorious question remaining relates to the infringement of claim. 7. In the device of the. Vanderveld patent now under consideration, when the indieating mechanism has been reset to zero, the measuring roller, as part of the entire measuring mechanism, returns to zero position; while in defendant’s device, through the interposition of a clutch between the measuring roller drum and the gearing, etc., of the measuring mechanism, the measuring roller (unless at the end of a measurement of 12 yards) does not so return, but remains stationary. The fourth element of claim 7 reads: “Spring means tending to return said measuring roller and associated mechanism to initial zero position.” The return of the measuring roller is not mentioned in claim 10. While in the opinion of the District Judge the effect of the words in claim 7 we have italicized was not in terms decided, the decree adjudged noninfringement of that claim. Plaintiff contends, however, that, but for the existence in defendant’s machine of a brake for the purpose alone of holding the measuring roller and its associated mechanism in any position to which operated, the measuring roller (in connection with" }, { "docid": "10304716", "title": "", "text": "and equivalents thereof. 35 U.S.C. § 112. Machine No. 2 has a means to vertically elongate the element c pull tower means. The vertical pull tower means of element c consists of a vertical cylindrical pull tower structure and rigidly mounted hydraulic cylinder in that tower which employs an extensible rod moveable in a downward direction. The energized cylinder forces the rod downward, extending the length of the pull tower means in a vertical direction. The hydraulic cylinder in Machine No. 2 is an equivalent means which performs the function of the hydraulic cylinder taught in the Chisum reissue patent, there being no mechanical distinction between vertical movement of the rod upward and downward. The structural length the pull tower means changes, e.g., elongates, with the extension of the rod. The element e “means to connect a tension member between the vertically elongate means and a portion of the structure to apply a first force” is embodied in Machine No. 2 as a system of pulleys, collars and hooks which allow a chain to be attached to the damaged portion of the vehicle, the chain being passed over the top of the outer tower structure and hooked to a lever. The lever is mounted at one end to the horizontal arm at the base of the pull tower structure and moves freely outside the tower at the other end. The chain is attached to the freely moving end of the lever. When the energized hydraulic cylinder elongates the vertical pull tower means, as described in the element d analysis, the extensible rod is forced downward, in turn forcing the lever downward, which results in chain tightening. Utilization of a lever between the extensible rod and the chain does not alter the function. Chain tightening is accomplished when the rod is extended in a downward direction, the lever bringing the elongatable pull tower means into contact with the chain. The Chisum device employs cylindrical vertical members on which adjustable collars are placed. A pulley is rigidly mounted to the collar. The collar can be adjusted to accommodate a desired angle of" }, { "docid": "6411426", "title": "", "text": "and means for applying the glue and folding the cartons.” The device of these claims is a single machine, mechanically operated throughout, which successively dewaxes the cartons, applies the glue, folds the cartons, brings the glued edges together, and so holds them until the glue is set. ’ The District Judge held, and we think rightly, that neither of these claims is infringed by defendant, which dewaxes the cartons in a given room by one machine, keeping therein on hand a large quantity of such dewaxed products until ready to complete the work of manufacturing the same, when they are, by truck, manually removed to another room, where, on another entirely distinct machine, they are glued, folded, and fastened together, the operations on the two machines not being necessarily even closely consecutive. We agree with the District Judge that “the work of removing the par-affine is an entirely separate operation, so far as mechanics are concerned, from the operation of applying the glue and bringing the parts together so that the glue will set. * • * The wax might be removed in one eity on one day and the gluing might be performed in another eity many months thereafter without interfering in any way with the actual mechanical result.” Defendant thus does not employ “a machine” which responds to the claims in question, for successive mechanical operations. The most which can be said is that defendant has two machines, the use of which, the one before, the other after, and by the aid of an intervening manual trucking operation, accomplishes the work of the single machine of the patent claims we are considering, which are for “a machine,” and not for a process. Other considerations aside, and even were the combined effect of defendant’s two machines otherwise the equivalent of that of the device of the claims in question, it • seems enough to say that defendant’s manual trucking of the dewaxed cartons to the gluing and folding machine located in another room is not the equivalent of plaintiffs’ mechanical delivery of the carton from the dewaxing mechanism to" }, { "docid": "1998512", "title": "", "text": "machine, partially manually operated. The Karr foot-lever operation for releasing the spiral coils from the holding jigs is indicated by prior-art patent- Holtfoth 1,473,989. The Gail machine would in many particulars -appear to be a more complete machine than that of Karr. Karr apparently omitted certain of the mechanical elements of Gail and adopted all other elements, or equivalents thereof. The principal difference between the two machines is in the methods employed to open and close the holding jigs and release the spiral springs after their helical engagement. This difference represents only the varying means that different mechanics conversant with the art of forming spring ■structures might adopt for opening and closing the holding jigs and for releasing the helically connected spirals. The same results are accomplished by substantially the same means in both Gail and Karr, and the possible, minor improvements in the Karr holding-and-releasing mechanisms certainly do not constitute invention within the meaning of the-patent law. The fact that in Karr the helicals connecting the upper and lower terminal coils of adjacent spiral springs are fed into the same side of the machine, whereas in Gail they are fed into opposite sides, is merely a choice of method and an adaptation which any mechanic skilled in the art could readily discern. -[23] In summary, Karr patent in suit 1,922,002 is fully anticipated in Gail and other prior patents and does not represent invention. It is a combination patent for an improvement in a crowded field and merely combines elements old in the art, or equivalents thereof, and represents no more than the work of a skilled mechanic. It is invalid .because fully anticipated and because lacking invention. As it is invalid, no question is presented as to its infringement by defendants. The defendants further contend that plaintiff’s patent 2,026,276 for a spring-assembling machine is invalid because lacking invention and because fully anticipated in prior-art patents, particularly in plaintiff’s patent, Karr 1,922,002. It may be noted that application for No. 2,026,276 was made by Erickson September 30, 1933, or about two months after 1,922,002 had been issued to Karr," }, { "docid": "22708935", "title": "", "text": "shown in the patent of 1879. The taking out of this patent, covering precisely what is now claimed for the patent of 1879, clearly indicates that the latter patent was not supposed to extend to the device covered by the 1882 patent, which is not distinguishable from the prior patents issued to Gardiner & Downey, Berlew & Kissell, and J. M. Elder, under which P. P. Mast & Company construct the cultivators sold by the appellants. The range of equivalents depends upon' the extent and nature of the invention. If the invention is broad or primary in its character, the range of equivalents will- be correspondingly broad, under the liberal construction which the .courts give to such inventions. The doctrine is well stated in Morley Machine Co. v. Lancaster, 129 U. S. 263, 273; where it is said: Where an invention is one of a primary character, and the mechanical functions performed by the machine are, as a whole, entirely new, all subsequent machines which • employ substantially the same means to accomplish the same result are infringements, although the subsequent machine may contain improvements in. the separate mechanisms which go to make up the machine.” Tested by this rule, and in view of the prior devices and the great variety of springs in use previous to the granting of his patent, Wright cannot be treated as a pioneer in the art. Neither can he, nor his assignee, be allowed to invoke the doctrine of equivalents, such as the courts extend to primary inventions, so as to include all forms of spring devices and adjustments which operate to perform the same function, or accomplish the same result. Again, the issuance of the patents to Gardiner & Downey, Berlew & Kissell, and Elder creates a prima, facie presumption of a patentable difference from that of the Wright patent of 1879. Corning v. Burden, 15 How. 252; Duff v. Sterling Pump Co., 107 U. S. 636. We think it manifest, from the prior state of the art, if the invention covered by his patent of 1879 was not anticipated, and if it" }, { "docid": "6411427", "title": "", "text": "• * The wax might be removed in one eity on one day and the gluing might be performed in another eity many months thereafter without interfering in any way with the actual mechanical result.” Defendant thus does not employ “a machine” which responds to the claims in question, for successive mechanical operations. The most which can be said is that defendant has two machines, the use of which, the one before, the other after, and by the aid of an intervening manual trucking operation, accomplishes the work of the single machine of the patent claims we are considering, which are for “a machine,” and not for a process. Other considerations aside, and even were the combined effect of defendant’s two machines otherwise the equivalent of that of the device of the claims in question, it • seems enough to say that defendant’s manual trucking of the dewaxed cartons to the gluing and folding machine located in another room is not the equivalent of plaintiffs’ mechanical delivery of the carton from the dewaxing mechanism to the gluing and folding mechanism of its machine. Brown v. Davis, 116 U. S. 237, 249, 6 S. Ct. 379, 29 L. Ed. 659; Republic, etc., Co. v. Youngstown, etc., Co. (C. C. A. 6) 272 F. 386, 392; Gear Grinding Machine Co. v. Studebaker Corp. (C. C. A. 6) 270 F. 934, 936. Claim 12 of the second patent reads: “12. The method of sealing waxed ear-tons consisting of removing or driving off a substantial portion of the wax from the surfaces to be glued together by contacting with heating plates, applying glue thereto, and pressing such surfaces together.” We agree with the District Judge that this claim is not anticipated, and that it is not rendered invalid by anything in the prior art. The use of heating plates for dewaxing the entire surfaces to be glued together was new. The prior art discloses nothing reasonably equivalent. The nearest approach was the Ashland process by which the lower edges of the cartons were made to stand sub- ■ stantially in a perpendicular upon a" }, { "docid": "3648044", "title": "", "text": "of automatic action. As said in Brown v. Davis, 1885, 116 U.S. 237, 249, 6 S.Ct. 379, 386, 29 L.Ed. 659: “But the lever, or its equivalent, as a mechanical instrument, is made an essential element in claim 2; and dispensing with the lever, and using instead the human hand, is not the use of an equivalent, although in the plaintiffs’ machine the hand is applied to work the lever. Water Meter Co. v. Desper, 101 U.S. 332, 337, [25 L.Ed. 1024]; Gage v. Herring, 107 U.S. 640, 648, 2 S.Ct. 819 [27 L.Ed. 601]; Fay v. Cordesman, 109 U.S. 408, 420, 421, 3 S.Ct. 236 [27 L.Ed. 979]; Sargent v. Hall Safe and Lock Co., 114 U.S. 63, 86, 5 S.Ct. 1021 [29 L.Ed. 67].” (Italics added) See also: Gage v. Herring, 1882, 107 U.S. 640, 648, 2 S.Ct. 819, 27 L.Ed. 601; Republic Iron & Steel Co. v. Youngstown Sheet & Tube Co., 1921, 6 Cir., 272 F. 386, 392; American Chocolate Machinery Co. v. Helmstetter, 1905, 2 Cir., 142 F. 978; Michigan Carton Co. v. Sutherland Paper Co., 1928, 6 Cir., 29 F.2d 179; King Philip Mills v. Kip-Armstrong Co., 1 Cir., 1904, 132 F. 975, 976; American Roll Gold Leaf Co. et al. v. W. H. Coe Mfg. Co. et al., 1914, 1 Cir., 212 F. 720, 724; Dudlo Mfg. Co. v. Varley Duplex Magnet Co., 1918, 7 Cir., 253 F. 745, 750; Aleograph Co. v. Western Electric Co., Inc., 1934, 2 Cir., 68 F.2d 853, 856. A step during the process of manufacture is a part of it. The result cannot be regarded as the equivalent of the element of a claim. See, The Risdon Iron & Locomotive Works v. Medart, 1895, 158 U.S. 68, 84, 15 S.Ct. 745, 39 L.Ed. 899; Buono v. Yankee Maid Dress Corp., 1935, 2 Cir., 77 F.2d 274, 279. Here, in the installation of the accused device, the tension adjustment is achieved by a machine shop or factory operation prior to the placing of the spring onto the drum, i. e., before assembly. Thereafter, no adjustment can be made." }, { "docid": "21660226", "title": "", "text": "is automatically returned to zero position, thus making it necessary for' the clerk to take note of the indicator before removal of the material. In such a situation there was no occasion for a throat-lock of Vanderveld’s conception, for preventing entrance of cloth or like material into the machine for measurement, except when the mechanism and indicator are at initial zero position. Stocke’s bar was not -across the “slot” between the rollers, except when the latter were pressed together at the close of a measuring operation; and, when the rollers were separated (and the indicator set at zero), the bar rose above and out of the way of the “slot,” but, when the bar was projecting across the “slots,” and the latter were in contact, the bar manifestly caused no more obstruction to the introduction of goods than was created by the pressing of the rolls together. This bar seems to have been largely and primarily intended as an anti-spinning device operating at the conclusion of a remnant measurement. We think Stoeke’s bar not the equivalent of Vander-veld’s “stop means,” associated with any manually operable brake means and controlled by the operation thereof. It seems clear that claims 7 and 10 involve invention. Consideration of the specification and drawings of the Hoseh-Wheeler patent, No. 1,520,491, December 23, 1924, under which defendant’s Measuregraph machine is constructed, examination of a careful drawing of defendant’s machine, and expert testimony relating thereto, are convincing that claim 10 is infringed. We think each and every element of claim 10 reads literally and substantially upon defendant’s machine. Infringement is not avoided by the fact that in plaintiff’s device the machine is reset to zero and the throat-stop raised by a resetting lever at one side of the machine; while in defendant’s machine these operations result from pressing a reset button at the rear of the machine; nor by any other manual differences in operation. The means employed by the respective devices impress us as mechanical equivalents of each other. The only meritorious question remaining relates to the infringement of claim. 7. In the device of the." }, { "docid": "3648043", "title": "", "text": "the tension of the spring. To constitute infringement, there must be substantial identity of result, means and operation. Electric Railroad Signal Co. v. Hall Signal Co., 1885, 114 U.S. 87, 96, 5 S.Ct. 1069, 29 L.Ed. 96; Cimiotti Unhairing Co. v. American Fur Refining Co., 1905, 198 U.S. 399, 25 S.Ct. 697, 49 L.Ed. 1100; Hyman v. Woolworth Co., 1928, 8 Cir., 28 F.2d 833, 838; Sanitary Refrigerator Co. v. Winters, 1929, 280 U.S. 30, 41, 42, 50 S.Ct. 9, 74 L.Ed. 147. This, of course, is subject to the general rule that infringement cannot be avoided by substituting an equivalent performing substantially the same function. Bates v. Coe, 1878, 98 U.S. 31, 32, 25 L.Ed. 68; Union Paper Bag Machine Co. v. Murphy, 1877, 97 U.S. 120, 24 L.Ed. 935; Cimiotti Unhairing Co. v. American Fur. Refining Co., supra; Sanitary Refrigerator Co. v. Winters, supra; Samuel M. Langston Co. v. Continental Container Corp., 1936, 2 Cir., 80 F.2d 847. A manual operation is not the equivalent of a mechanical means for performing it or of automatic action. As said in Brown v. Davis, 1885, 116 U.S. 237, 249, 6 S.Ct. 379, 386, 29 L.Ed. 659: “But the lever, or its equivalent, as a mechanical instrument, is made an essential element in claim 2; and dispensing with the lever, and using instead the human hand, is not the use of an equivalent, although in the plaintiffs’ machine the hand is applied to work the lever. Water Meter Co. v. Desper, 101 U.S. 332, 337, [25 L.Ed. 1024]; Gage v. Herring, 107 U.S. 640, 648, 2 S.Ct. 819 [27 L.Ed. 601]; Fay v. Cordesman, 109 U.S. 408, 420, 421, 3 S.Ct. 236 [27 L.Ed. 979]; Sargent v. Hall Safe and Lock Co., 114 U.S. 63, 86, 5 S.Ct. 1021 [29 L.Ed. 67].” (Italics added) See also: Gage v. Herring, 1882, 107 U.S. 640, 648, 2 S.Ct. 819, 27 L.Ed. 601; Republic Iron & Steel Co. v. Youngstown Sheet & Tube Co., 1921, 6 Cir., 272 F. 386, 392; American Chocolate Machinery Co. v. Helmstetter, 1905, 2 Cir., 142 F. 978; Michigan" }, { "docid": "10304717", "title": "", "text": "attached to the damaged portion of the vehicle, the chain being passed over the top of the outer tower structure and hooked to a lever. The lever is mounted at one end to the horizontal arm at the base of the pull tower structure and moves freely outside the tower at the other end. The chain is attached to the freely moving end of the lever. When the energized hydraulic cylinder elongates the vertical pull tower means, as described in the element d analysis, the extensible rod is forced downward, in turn forcing the lever downward, which results in chain tightening. Utilization of a lever between the extensible rod and the chain does not alter the function. Chain tightening is accomplished when the rod is extended in a downward direction, the lever bringing the elongatable pull tower means into contact with the chain. The Chisum device employs cylindrical vertical members on which adjustable collars are placed. A pulley is rigidly mounted to the collar. The collar can be adjusted to accommodate a desired angle of pull by sliding vertically or by rotating the collar on the cylindrical member. The vertical members of Machine No. 2 are square, rather than cylindrical, thus rotation of the collar on the member is precluded. However, Machine No. 2 employs a pivot pin where the pulley attaches to the collar, thus the pulley can be adjusted horizontally as well as vertically, just as accomplished in the Chisum device. Machine No. 2 possesses an equivalent element e means which performs the functions stated in element e. If properly construed claims read on the infringing product, there is literal infringement. Atlas Powder Co. v. E.I. duPont DeMours, 750 F.2d 1569, 1579, 224 U.S.P.Q. 409 (Fed.Cir.1984), citing Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569, 219 U.S.P.Q. 1137, 1140 (Fed.Cir.1983). Where the accused devise includes a means that is equivalent and that performs the function of that means, the additional elements of the claim being found, the claim would read directly on the accused device and constitute literal infringement. See DMI, Inc. v. Deere & Co.," }, { "docid": "5348017", "title": "", "text": "Schirmer’s invention entitles him, defendant’s cutting-off device must be considered the mechanical equivalent of Schirmer’s. Plaintiff is not limited to the specific form shown in the patent. Schiebel Co. v. Clark (C. C. A. 6) 217 Fed. 760, 768, 133 C. C. A. 490. True, Schirmer’s so-called pressure roll (in some respects a misnomer) automatically engages the strips to be torn off, while defendant’s plate is brought into such engagement by the manual lifting of the strips: hut the question of mechanical equivalency goes farther and must be determined by comparison of the entire operation in each case. In each the strips are torn off by hand; the differences are merely that in Schirmer the strips are clamped before the tearing operation begins, and the rear edge of the top of the machine is the cutting plate, while in defendant’s machine the act of manually lifting the strips for the cutting-off operation mechanically raises the plate, thereby clamping the strips, which are then torn by the opposite cutting'edge of the plate. While a mere manual operation is not the equivalent of a mechanical operation (Brown v. Davis, 116 U. S. 237, 249, 6 Sup. Ct. 379, 29 L. Ed. 659), in our opinion this rule as applied to the methods in question here does not defeat equivalency. In each of the two methods the same result is accomplished in substantially the same way and by substantially the same means. Both devices were old, were borrowed from the same art, where they were used for the same purpose, and may fairly be considered interchangeable. The fact that the Begg patent had expired when defendant adopted its device is not important. It follows, from these views, that the decree of the District Court, finding the claims in suit valid and infringed, should be affirmed. In view of the conclusion already announced, that the new references which formed the subject of the motion to reopen contain nothing which should change the result theretofore reached below, and the ground of the refusal to reopen not appearing, the order of denial is affirmed. Appellee will" }, { "docid": "5348016", "title": "", "text": "combine Schirmer’s feed mechanism and his cutting-off mechanism, but also by the success of the Schirmer invention and its favorable reception by the buying and using public. , In our opinion, also, the defendant must be held to infringe. Its feeding device is substantially that of Schirmer. Pressure is applied to the strips only during the cutting-off operation and while the feeding is suspended. Instead, however, of employing the cutting-off device adopted by Schirmer, defendant employs thfe device shown in the patent to Begg, No. 467,393, January 19, 1892. Begg’s device differs from Shoup’s device before explained in this: It consists of a pivoted fiat bar with a cutting edge, which is out. of engagement with the sheets until the tearing-off operation. When the sheets are, by the hand of the operator, pulled upwardly and against tire cutting edge of the bar, the latter is tilted, and the opposite edge thereby automatically presses upon and holds the strips firmly while they are being so severed. We think, under the reasonable range of equivalents to which Schirmer’s invention entitles him, defendant’s cutting-off device must be considered the mechanical equivalent of Schirmer’s. Plaintiff is not limited to the specific form shown in the patent. Schiebel Co. v. Clark (C. C. A. 6) 217 Fed. 760, 768, 133 C. C. A. 490. True, Schirmer’s so-called pressure roll (in some respects a misnomer) automatically engages the strips to be torn off, while defendant’s plate is brought into such engagement by the manual lifting of the strips: hut the question of mechanical equivalency goes farther and must be determined by comparison of the entire operation in each case. In each the strips are torn off by hand; the differences are merely that in Schirmer the strips are clamped before the tearing operation begins, and the rear edge of the top of the machine is the cutting plate, while in defendant’s machine the act of manually lifting the strips for the cutting-off operation mechanically raises the plate, thereby clamping the strips, which are then torn by the opposite cutting'edge of the plate. While a mere manual" }, { "docid": "22136398", "title": "", "text": "that it will climb up and over, or cut and break through intervening obstacles without materially forcing the earth laterally at its front part, and widening towards the rear end so as to open a furrow in which the seed to be planted may be deposite*}, and long enough to furnish a support to the framework of the machine. Explanations of that patent are certainly unnecessary, as it is plain that the claim is for distinct and separate ingredients of the combination embodied in the original patent. 3. No. 1038. — Under this patent the complainant claims a hinged joint between the point of the tongue and the rear part of the machine in combination with a seed-planting machine, so that one part of the framework may be raised, lowered, adjusted, and supported on the other part. Nor is any argument necessary to show that the claim of the patent is for one of the separate and distinct ingredients of the combination embodied in the original patent, all of which were confessedly old. 4. No. 1039. — Two claims are made in this patent as follows: (1.) The seat for the attendant, or, in the language of the claim, the mounting of the attendant upon the machine or seed-planter, wherein the seed-dropping mechanism is operated by hand, in such a position that he may readily see the previously made marks upon the ground, and operate the dropping mechanism to conform thereto. (2.) He also claims a lever, in combination with a seed-planting machine, or its equivalent, by which the driver or second attendant may raise or lower that part of the framework that carries the attendant and the seeding devices. Manifestly the lever or its equivalent is the principal subject-matter of that claim, reference being made to certain other parts of the seed-planter merely as a means of describing the functions to be performed by the level’, and the results to be attained by its use; nor does it x-equire any argument to show that the lever is old, as it is matter of common knowledge that it was well" }, { "docid": "3648046", "title": "", "text": "In the patented device, the adjustment of tension is achieved, after the device is assembled, by means of the rotatable axle and the disc. We thus have, in the patented device, a mechanical means for securing proper tension. In the accused device, we have no such means. Instead, we have a manual handling before assembly. The one is not the equivalent of the other. As said in Republic Iron & Steel Co. v. Youngstown Sheet & Tube Co., supra, 272 F. at page 392: “A manual handling is not the equivalent of a claimed mechanism.” So, whether we view the problem through the general principle that no infringement exists, unless there be identity of result, means and operation or apply the doctrine of equivalents, the result is the same: the omission of the rotatably adjustable axle which performs an important function in the patented device avoids infringement. See: Fay v. Cordesman, 1883, 109 U.S. 408, 3 S.Ct. 236, 27 L.Ed. 979; McClain v. Ortmayer, 1891, 141 U.S. 419, 425, 12 S.Ct. 76, 35 L.Ed. 800; Oliver United Filters, Inc. v. Eimco Corp., 1937, 10 Cir., 91 F.2d 345, 350; Wichita Visible Gasoline Pump Co. et al. v. Clear Vision Pump Co., 1927, 8 Cir., 19 F.2d 435, 437. However, two other elements are absent in the accused device — the circumferentially inclined face (6), and the circumferential bead (7). These perform the definite function of keeping the cable from passing off the inner end of the drum. The flange or flare on the drum and the indentation on the back of the casing in the accused device do not perform the same function. To particularize: The triangular indents in the housing of the accused device are not beads. They do not surround the drums, to prevent the cable from passing off their rearward edge, or wedging between them and the housing. In operation, the cables do not touch these indents. The flare or flange on the inner end of the drum of the accused device does not prevent the cable which winds on the drum from passing off its inner" }, { "docid": "10648272", "title": "", "text": "Machine Does Not Have A Variable Speed Transmission As Specified In Claim 2 The claim in suit relies upon and specifies a variable speed transmission as connecting the drive means to the sheet feeding means, which variable speed transmisssion is required by the patent to be of a non-slip type (PX-157, Column 5, lines 40-45). I find that the defendants do not employ a variable speed transmission, or a mechanical equivalent thereof. Defendants’ clutch brake mechanism, operated by an electric eye, is a different mechanical element than the non-slip variable speed transmission as required by the claim in suit (TR 882, 903-4, 1784). The patent in suit at column 4, lines 35-48, indicates that the only substitute for a variable speed transmission contemplated by the patentees was a set of change gears. To demonstrate furthér than the inventors, Klein et al., did not contemplate a clutch brake as an equivalent of the variable speed transmission, in their subsequent patent 3,591,436 a clutch brake cutoff mechanism and variable speed transmission are described as different elements and there is no indication of them being equivalent or interchangeable. With respect to the variable speed transmission described in the patent in suit, it is a manually shiftable gear arrangement having 16 speed changes (PX-157, Column 4, lines 36-9). To change speeds to accommodate different lengths of sheet, the machine must be shut down and the gears manually shifted. Plaintiff’s production machine did not follow the teaching of the patent in suit but rather employed the PIV or positively infinitely variable speed transmission (Reckseit TR 669). This PIV was incorporated into the model which therefore is not representative of what is encompassed by the patent in suit. The PIV allows the making of fine adjustments rather than the manual changing of gears described in the patent (Reckseit TR 868). Moreover, in order to adjust the model machine which included the PIV, the machine must be running so as to make proper adjustments, all of which could not be accomplished with the patented structure. The accused machine does not possess element 7 of the claim in" }, { "docid": "3648045", "title": "", "text": "Carton Co. v. Sutherland Paper Co., 1928, 6 Cir., 29 F.2d 179; King Philip Mills v. Kip-Armstrong Co., 1 Cir., 1904, 132 F. 975, 976; American Roll Gold Leaf Co. et al. v. W. H. Coe Mfg. Co. et al., 1914, 1 Cir., 212 F. 720, 724; Dudlo Mfg. Co. v. Varley Duplex Magnet Co., 1918, 7 Cir., 253 F. 745, 750; Aleograph Co. v. Western Electric Co., Inc., 1934, 2 Cir., 68 F.2d 853, 856. A step during the process of manufacture is a part of it. The result cannot be regarded as the equivalent of the element of a claim. See, The Risdon Iron & Locomotive Works v. Medart, 1895, 158 U.S. 68, 84, 15 S.Ct. 745, 39 L.Ed. 899; Buono v. Yankee Maid Dress Corp., 1935, 2 Cir., 77 F.2d 274, 279. Here, in the installation of the accused device, the tension adjustment is achieved by a machine shop or factory operation prior to the placing of the spring onto the drum, i. e., before assembly. Thereafter, no adjustment can be made. In the patented device, the adjustment of tension is achieved, after the device is assembled, by means of the rotatable axle and the disc. We thus have, in the patented device, a mechanical means for securing proper tension. In the accused device, we have no such means. Instead, we have a manual handling before assembly. The one is not the equivalent of the other. As said in Republic Iron & Steel Co. v. Youngstown Sheet & Tube Co., supra, 272 F. at page 392: “A manual handling is not the equivalent of a claimed mechanism.” So, whether we view the problem through the general principle that no infringement exists, unless there be identity of result, means and operation or apply the doctrine of equivalents, the result is the same: the omission of the rotatably adjustable axle which performs an important function in the patented device avoids infringement. See: Fay v. Cordesman, 1883, 109 U.S. 408, 3 S.Ct. 236, 27 L.Ed. 979; McClain v. Ortmayer, 1891, 141 U.S. 419, 425, 12 S.Ct. 76, 35 L.Ed. 800;" }, { "docid": "22136399", "title": "", "text": "1039. — Two claims are made in this patent as follows: (1.) The seat for the attendant, or, in the language of the claim, the mounting of the attendant upon the machine or seed-planter, wherein the seed-dropping mechanism is operated by hand, in such a position that he may readily see the previously made marks upon the ground, and operate the dropping mechanism to conform thereto. (2.) He also claims a lever, in combination with a seed-planting machine, or its equivalent, by which the driver or second attendant may raise or lower that part of the framework that carries the attendant and the seeding devices. Manifestly the lever or its equivalent is the principal subject-matter of that claim, reference being made to certain other parts of the seed-planter merely as a means of describing the functions to be performed by the level’, and the results to be attained by its use; nor does it x-equire any argument to show that the lever is old, as it is matter of common knowledge that it was well known long before the original patent of the complainant was issued. 5. No. 1040. — Two claims are also made by the patentee in this patent: (1.) He claims a pair of auxiliary wheels and an axle, in combination with the seed-planting machine, carried mainly upon not less than two runners and two covering-wheels, for the double purpose of taking a portion of the weight off from the runners atid the other wheels, and for affording means of readily converting the machine from a hand-planter to an automatic seed-sowex*. (2.) He also claims hanging the axle of the auxiliary wheels on hinged or adjustable arms or levers, so that more or less of the machine may be placed upon the auxiliary wheels. All necessity for any remarks upon those claims is superseded by the admission that they are not infringed by the respondents. Four of the five reissues are included in the charge, and the complainant also charges that the respondents have infringed five other reissued patents held by him, which also secure to him" }, { "docid": "22285396", "title": "", "text": "It may be true that the defendant’s peculiar form of stitch was unknown before; and it may also be true that his arrangement for carrying the buttons with their eyes upward, and turning the eyes into a horizontal plane by the twisting of the conveyer-way, was not before known. Of course, they were not before known in a machine for automatically sewing buttons to a fabric, because Morley’s machine was the first to do that. But still, the defendant employs for the above purposes known devices, which, in mechanics, were recognized as proper substitutes for the devices used by Morley to effect the same results. In this sense, the mechanical devices used by the defendant are known substitutes or equivalents for those employed in the Morley machine to effect the same result; and this is the proper meaning of the term “known equivalent,” in reference to a pioneer machine such as that of Morley. Otherwise, a difference in the particular devices used to accomplish a particular result in such a machine would always enable a defendant to escape the charge of infringement, provided such devices were new with the defendant in such a machine, because, as no machine for accomplishing the result existed before that of the plaintiff, the particular device alleged to avoid infringement could not have existed or been known in such a machine prior to the plaintiffs invention. 129 U.S. at 289-90, 9 S.Ct. at 308. The tenet that the substitution had to be a known equivalent at the issue date was consistently applied prior to Graver and was explicitly reiterated in 1946 by the Supreme Court in Halliburton Oil Well Cementing, 329 U.S. at 13, 67 S.Ct. at 12, shortly before Graver II, where the Court explained: [T]he alleged infringer could have prevailed if the substituted device (1) performed a substantially different function; (2) was not known at the date of Walker’s patent as a proper substitute for the resonator; or (3) had been actually invented after the date of the patent. [Emphasis added.] Thus, the law preceding Graver II was that equivalency had to be" } ]

[ { "docid": "15562177", "title": "", "text": "testified under oath as are charged in the indictment; 3. That those false statements were wilfully made in that at the time he made them he knew them to be' false; 4. As to the matters which it is charged he made false statements, those matters were material to the issues under inquiry by that grand jury. The Judge then stated: In this case, as the evidence shows, and there is no serious dispute, Mr. Mulligan did appear before a grand jury for the Southern District of New York and took an oath that he would testify truthfully and that such grand jury was authorized by law to administer oaths. . I charge you as a matter of law that the matters as to which Mr. Mulligan was asked as set forth in the indictment were material to the issues under inquiry before the grand jury before which the testimony was given. Therefore, you need not concern yourself with either the first or the fourth elements with which I have just outlined for you. You should direct your attention to the second and the third elements. . Appellant’s counsel argues that the trial court erred in removing elements 1 and 4 from the jury’s consideration. This contention is meritless. It was not error to withdraw the materiality issue from the jury because materiality is a question of law. United States v. McFarland, 371 F.2d 701, 703 n.3 (2d Cir. 1966), cert. denied, 387 U.S. 906, 87 S.Ct. 1689, 18 L.Ed.2d 624 (1967). The Government contends that the district jud'ge did not withdraw the first element from the jury but merely commented that there was no serious dispute over whether appellant appeared before the grand jury and took an oath to testify honestly. In support of this argument, it points to the following comments of defense counsel in his closing: Dennis Mulligan testified in the grand jury. Do you know you have a right to refuse to testify in the grand jury? You have an absolute right to say no, I am not going to testify unless you grant me immunity." } ]

[ { "docid": "14260273", "title": "", "text": "(7th Cir. 1974) (same), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). III. Materiality of the Perjury Kamiyama has also moved to dismiss counts nine, ten, twelve, and thirteen on the ground that the allegedly false answers were not material to the grand jury’s inquiry, a sine qua non of a perjury charge. Initially, a few general observations regarding materiality are in order. Because of the investigative function of grand juries, the concept of materiality in the context of a grand jury inquiry is quite broad and liberally construed. United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); accord, United States v. Byrnes, 644 F.2d 107, 111 (2d Cir. 1981). Thus, the Second Circuit in Berardi stated that [materiality is . . . demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative, that the response was believed by the grand jury to be perjurious at the time it was uttered, or that the matters inquired into were collateral to the principal objective of the grand jury. United States v. Berardi, supra, 629 F.2d at 728 (citations omitted). It should also be emphasized that, on this motion to dismiss the indictment, the Court is deciding only whether “the facts alleged in the indictment are sufficient to charge a crime under the applicable statute.” United States v. Steinschreiber, 218 F.Supp. 426, 427 (S.D.N.Y.1962). In this instance, that means whether the specifications of perjury bear upon the issues that the indictment alleges were material to the grand jury’s investigation. See United States v. Ponticelli, 622 F.2d 985, 989 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980) (“ ‘the materiality requirement of" }, { "docid": "15740796", "title": "", "text": "statements bear upon issues under investigation by the grand jury. Appellant argues that her testimony that the birds were dead upon arrival and buried rather than delivered to Mrs. Meffert, was totally irrelevant to the grand jury investigation. The District Court rejected this contention and we affirm its finding of materiality. The leading case in this circuit addressing the question of materiality of false declarations before a grand jury is United States v. Berardi, 629 F.2d 723, cert. denied, - U.S. -, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). See also United States v. Mulligan, 573 F.2d 775 (2d Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). Both parties rely upon Berardi, as did the District Court in finding the materiality of Byrnes’ declarations. All of the elements of materiality set forth in Berardi are met here. As we explained in that case, the Government has the burden of establishing that the perjury was committed in response to a question within the purview of the grand jury investigation. That nexus need not be established beyond a reasonable doubt. 629 F.2d at 727. It is normally satisfied by introducing into evidence the grand jury minutes or the testimony of the foreperson of that jury. This enables the district court to determine the scope of the grand jury investigation and the relationship of the questions which elicited the perjury. Id. Here Judge McCurn had the benefit of the minutes as well as the testimony of the deputy foreperson and the United States Attorney in charge of the investigation. Materiality is broadly construed: “Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative ... or that the matters inquired into were collateral to the principal objective of" }, { "docid": "22815960", "title": "", "text": "534, 66 L.Ed.2d 293 (1980); see United States v. Mulligan, 573 F.2d 775, 779 (2d Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). Whether or not a false declaration is material to a grand jury investigation is a question of law that must be determined by the court, not the jury. Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct. 268, 273, 274, 73 L.Ed. 692 (1929) (dicta); Berardi, 629 F.2d at 728; Mulligan, 573 F.2d at 779. Materiality is demonstrated if the question posed is such that a truthful response could potentially aid the inquiry or a false answer hinder it. Berardi, 629 F.2d at 728. Because materiality is a question of law, an appellate court may substitute its judgment for that of the lower court on the issue of whether the materiality element has been met. See Berardi, 629 F.2d at 728-29 (holding that the district court erred in finding false declaration immaterial). Because we disagree with the district court’s holding that Kamiyama’s state ments “technically” were not material when made to the substitute grand jury, we need not reach or decide the numerous questions regarding whether the substitute grand jury was conducting an ancillary proceeding. The district court’s finding that Kamiyama’s statements were immaterial to the substitute grand jury is at odds with the only evidence in the record on this point. There is uncontradicted, direct testimony in the record by Assistant United States Attorney Martin Flumenbaum that both the Grand Jury and the substitute grand jury were investigating Moon for possible tax violations. For example, Flumenbaum testified that the substitute grand jury was “charged with investigating the same matters that [the Grand Jury] was doing.” This testimony was supported by affidavit evidence to the effect that: the Grand Jury approved in advance the procedure by which Kamiyama testified before the substitute grand jury, which was advised as to the substance of the on-going investigation of Moon and informed of the context in which Kamiyama was testifying; on two occasions the substitute grand jury heard testimony from another witness in this" }, { "docid": "22815958", "title": "", "text": "grand jury and later presented to the Grand Jury in accordance with the latter’s instructions. Prior to trial appellant moved to dismiss the perjury counts arising from his testimony before the substitute grand jury on the ground that this testimony was not material to any investigation being conducted by the substitute grand jury. In a published decision, the district court agreed that Kamiyama’s statements to the substitute grand jury technically were not material to any investigation then being conducted by it. United States v. Moon, 532 F.Supp. 1360, 1371 (S.D.N.Y.1982). Nevertheless, the district court refused to dismiss the subject counts, reasoning that § 1623(a) extends to proceedings ancillary to those of a grand jury and that at the time Kamiyama testified before the substitute body it was acting in such an ancillary capacity. Id. On that basis the trial judge found that Kamiyama’s substitute grand jury testimony was material to an investigation being conducted by the Grand Jury. The petit jury thereafter impliedly found by its conviction of defendant on Counts Eleven through Thirteen and No. 194 that Kamiyama gave the testimony knowing it to be false. Kamiyama now challenges the district court’s materiality finding. He argues that the substitute grand jury could not, as a matter of law, constitute an ancillary proceeding; that there was no evidence that the substitute grand jury was ancillary; that the district court erred in ruling on the ancillary proceeding question rather than submitting it to the petit jury; and that the district court impermissibly amended the indictment by relying on the ancillary proceeding theory which was not set out in the indictment. Moreover, he contends that there was insufficient evidence that his misstatements were material to the Grand Jury which eventually heard them. For the reasons discussed below these arguments are of no avail. Section 1623 proscribes false declarations made before a grand jury where those declarations are “material,” i.e., made in response to questions within the purview of matters that the grand jury is investigating. United States v. Berardi, 629 F.2d 723, 727 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct." }, { "docid": "21596090", "title": "", "text": "in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. (Emphasis supplied). Kross contends that the indictment should have been dismissed because none of her allegedly false declarations were material to the civil forfeiture action. We disagree. We have consistently held in the grand jury context that a false declaration is “material” within the meaning of § 1623 when it has “‘a natural effect or tendency to influence, impede or dissuade the grand jury from pursuing its investigation.’ ” United States v. Kiszewski 877 F.2d 210, 218 (2d Cir.1989) (quoting United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980)). We have pointed out that in a § 1623 prosecution for false declarations to a grand jury, [mjatters arguably cumulative or collateral to the grand jury’s objective in a given case are considered for their potential to aid that body, not for the probability of assistance from a truthful answer. United States v. Gribben, 984 F.2d 47, 51 (2d Cir.1993). Because the grand jury’s function is investigative, materiality in that context is “broadly construed.” Id. However, we have apparently not yet addressed the issue of materiality under § 1623 in the context of a deposition in a civil matter. The purpose of civil discovery is also investigative, and the scope of discovery includes any information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The Fifth Circuit has held that for purposes of § 1623, materiality in a civil discovery deposition is not limited to evidence admissible at trial, but includes matters properly the subject of and material to a deposition under Rule 26(b)(1). United States v. Holley, 942 F.2d 916, 924 (5th Cir.1991), cert. denied, — U.S. -, 114 S.Ct. 77, 126 L.Ed.2d 45 (1993). The Ninth and Sixth Circuits have also adapted a materiality definition under § 1623 to the civil deposition" }, { "docid": "23465325", "title": "", "text": "about whether claiming a party will pay or receive a sum (large or small) — when in fact it won’t — is the type of representation where “a truthful answer could help the inquiry, or a false response hinder it.” United States v. Berardi, 629 F.2d 723, 728 (2d Cir.1980) (noting also that “these effects are weighed in terms of potentiality rather than probability”). Like relevance and pertinency, cf. Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct. 268, 273-74, 73 L.Ed. 692 (1929), this is the sort of preliminary determination that does not vary significantly with the facts of each individual transaction and therefore does not require a jury finding under Winship. As the Sixth Circuit has noted, “[although the materiality of a statement rests upon a factual evidentiary showing, the ultimate finding of materiality turns on an interpretation of substantive law.” Abadi, 706 F.2d at 180. To make this determination, the district court must understand the workings of the federal agency and the role the false statement plays (or could play) in its deci-sionmaking process. This is not a pro forma inquiry, to be sure. For example, if the agency requests information about the borrower’s ethnic background, the district court would have to consider whether this would be relevant to the agency’s mission. Where the loan program provides a preference for certain ethnic or other groups (e.g., Native Americans, veterans), the misinformation would be material because it could well influence the agency’s decision. But if the information is being collected for statistical purposes or as a courtesy to another agency (e.g., the Civil Rights Commission), a court might well conclude that the information is not material because the misstatement does not affect the agency’s mission in any meaningful way. In either event, however, the inquiry calls for the kind of parsing of an agency’s statutory delegation of authority that is not normally subject to proof before a jury- II Even if the majority were right that materiality is a question of fact, Gaudin’s conviction would nevertheless have to be affirmed because he never objected to the judge’s" }, { "docid": "12070038", "title": "", "text": "275, 280 (2d Cir.1973) (citations omitted), before; submitting the remaining factual issues to the jury. See Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547, 99 L.Ed.2d 839 (1988); Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct. 268, 273-74, 73 L.Ed. 692 (1929); cf. United States v. Novod, 927 F.2d 726, 729 (2d Cir.), cert. denied, — U.S. —, 111 S.Ct. 2018, 114 L.Ed.2d 104 (1991); United States v. Demauro, 581 F.2d 50, 53 (2d Cir.1978). In light of the overwhelming weight of established authority, we decline Guariglia’s invitation to hold that the materiality issue must be submitted for jury determination. In this case, the district judge concluded that the statements in issue were material because “a truthful -answer ... could have tended to undermine Guariglia’s credibility, and thus could have helped the inquiry on which the jury was embarked_” (emphasis added). Guariglia asserts that the district court applied the incorrect standard for materiality. He relies on our decision in United States v. Freedman, 445 F.2d 1220 (2d Cir.1971), claiming that “in. order for a knowingly false , statement to be material, it must be shown that a truthful answer would have been of sufficient pro bative importance to the inquiry so that, as a minimum, further investigation would have occurred.” Id. at 1226-27 (emphasis added). Generally, we have deemed a statement material, for purposes of evaluating perjury before a grand jury, when a “truthful answer could conceivably have aided, the grand jury investigation.” Mancuso, 485 F.2d at 280-81 (emphasis added). See also United States v. Moon, 718 F.2d 1210, 1237 (2d Cir.1983); United States v. Berardi, 629 F.2d 723 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). This formulation derives from Carroll v. United States, 16 F.2d 951 (2d Cir.), cert. denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927), where we stated that testimony is material if it “has a natural effect or tendency to influence, impede, or dissuade the grand jury from pursuing its investigation....” Id. at 953. In Freedman, we relied on our" }, { "docid": "15740797", "title": "", "text": "need not be established beyond a reasonable doubt. 629 F.2d at 727. It is normally satisfied by introducing into evidence the grand jury minutes or the testimony of the foreperson of that jury. This enables the district court to determine the scope of the grand jury investigation and the relationship of the questions which elicited the perjury. Id. Here Judge McCurn had the benefit of the minutes as well as the testimony of the deputy foreperson and the United States Attorney in charge of the investigation. Materiality is broadly construed: “Materiality is thus demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in applying this gauge to specific situations, it is only the question, at the time of its asking, which is considered. It is of no consequence that the information sought would be merely cumulative ... or that the matters inquired into were collateral to the principal objective of the grand jury----” United States v. Berardi, supra, 629 F.2d at 728 (citations omitted). Measured by this broad test it is clear that the appellant’s perjury here was material. The grand jury investigation was prolonged and broad in scope. Appellant’s argument that it was simply limited to the importation of wildlife and had nothing to do with matters subsequent to importation is not accurate. Fitzsimmons was a target of the investigation and appellant’s testimony that he had not received the birds shielded Fitzsimmons from the conspiracy charge relating to his role in the transactions in which he and Clare were allegedly involved. Moreover, had the truth been told Ida Meffert would have been identified months before her role in the matter was actually discovered. Appellant’s false testimony clearly impeded and hindered the investigative efforts of the grand jury. Her perjury was therefore material within the meaning of the statute. See Carroll v. United States, 16 F.2d 951, 953 (2d Cir.), cert. denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927). II. Appellant’s remaining" }, { "docid": "5723196", "title": "", "text": "is generally not good procedure to rely on only the defendant’s grand jury testimony. However, we are satisfied that in this case there was sufficient evidence from which the district court could have found that the grand jury was investigating the possibility of political payoffs. McComb’s testimony was lengthy: the transcript of the testimony is 97 pages long. The grand jury’s questions were exclusively about McComb’s lobbying efforts on behalf of CMAI, his connection with Howard and Burrous, and the course of S.B. 245. Moreover, the recorded conversations between McComb and various CMAI members make it clear that the focus of the inquiry was the CMAI’s relationship with Burrous. See United, States v. Carter, 721 F.2d 1514 (11th Cir.1984) (taped conversations of defendants, who were involved in drug conspiracy, about their testimony before grand jury evidence of scope of investigation). Having determined the scope of the investigation, we must now decide whether the appellant is correct in his assertion that the government failed to establish a sufficient nexus between the investigation and his statements. Count 10 charged McComb with falsely testifying that the CMAI made a $1,200 loan to its PAC in February or March, 1979. The government has clearly established that this loan never occurred, and that the $1,200 was, in fact, intended as “up front” money for Speaker Burrous. It is clear that a truthful statement would have aided the grand jury’s inquiry, and conversely, that McComb’s false statement had the potential to interfere with the investigation. See United States v. Raineri, 670 F.2d 702, 718 (7th Cir.), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982) (material if tends to mislead or hamper inquiry regardless of whether testimony actually impeded inquiry); United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980) (materiality assessed by inquiring what effect truthful answer would have had). A truthful answer could have led the grand jury to the request by Howard for a contribution in exchange for a favorable committee assignment. Count 12 alleged in part: It" }, { "docid": "15740795", "title": "", "text": "Australian parrots in Hayward, California and described these parrots as “citizens.” The court interjected: “A citizen bird?” The witness answered: “Yeah, the whole birds is citizen.” More pointedly Mrs. Meffert testified that in February 1975 the appellant delivered four live swans and two live red breasted geese to her pursuant to an arrangement with Fitzsimmons whereby Mrs. Meffert and her husband provided room and board for some of his exotic wildlife. Mrs. Mef-fert was subjected to a grueling cross examination by counsel for appellant that was apparently aimed at her ornithological qualifications. Mrs. Meffert testified that after a few days one of the swans died and she preserved his leg in her freezer to establish his demise. “Man comes and tills the field and lies beneath, And after many a summer dies the swan.” Tithonus, Alfred Lord Tennyson. The principal argument on appeal is not that Byrnes had truthfully testified to the grand jury, but rather that her testimony was not “material” within 18 U.S.C. § 1623(a). That statute is violated only when the false statements bear upon issues under investigation by the grand jury. Appellant argues that her testimony that the birds were dead upon arrival and buried rather than delivered to Mrs. Meffert, was totally irrelevant to the grand jury investigation. The District Court rejected this contention and we affirm its finding of materiality. The leading case in this circuit addressing the question of materiality of false declarations before a grand jury is United States v. Berardi, 629 F.2d 723, cert. denied, - U.S. -, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). See also United States v. Mulligan, 573 F.2d 775 (2d Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). Both parties rely upon Berardi, as did the District Court in finding the materiality of Byrnes’ declarations. All of the elements of materiality set forth in Berardi are met here. As we explained in that case, the Government has the burden of establishing that the perjury was committed in response to a question within the purview of the grand jury investigation. That nexus" }, { "docid": "5723192", "title": "", "text": "we have done is to commit a felony.” Thus, McComb’s statement to Carr that Carr had better “forget it” if he believed improprieties occurred could rationally have been viewed as a request that Carr suppress any testimony about events which might have incriminated McComb. See United States v. Nicosia, 638 F.2d 970 (7th Cir.1980), cert. denied, 452 U.S. 961, 69 L.Ed.2d 972 (1981). C. Counts 10 and 12 Both of the remaining counts on which McComb was convicted charged that he had made material false statements to the December 1981 Grand Jury during his testimony on March 31, 1982, in violation of 18 U.S.C. § 1623. McComb argues that neither of these convictions can stand, because he claims there was no showing that the testimony was material to the grand jury’s investigation. An essential element of the crime of making false declarations to a grand jury is that the statements be material to the grand jury’s investigation. United States v. Ostertag, 671 F.2d 262, 264 (8th Cir.1982); United States v. Picketts, 655 F.2d 837, 840 (7th Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981); United States v. Thompson, 637 F.2d 267, 268 (5th Cir.1981); United States v. Berardi, 629 F.2d 723, 727 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). Materiality for purposes of § 1623 is broadly defined as a statement’s “effect or tendency to impede, influence, or dissuade the grand jury from pursuing its investigation.” United States v. Picketts, 655 F.2d at 839 (quoting United States v. Devitt, 499 F.2d 135, 139 (7th Cir.1974)). Mere potential interference with a line of inquiry is sufficient to establish materiality. United States v. Howard, 560 F.2d 281 (7th Cir.1977). However, it is the government’s burden to establish a nexus between the grand jury’s investigation and the defendant’s false statements by presenting some evidence about the scope of the investigation. This can be done by any of a variety of means. The foreperson or some other member of the grand jury may be called to establish the investigation’s scope, United States" }, { "docid": "17916837", "title": "", "text": "a reading of Counts One and Two of the indictment that the Government is alleging his false testimony relates to the same issue; thus, they may in fact be duplicitous. With regard to Count Three of the indictment, it would not seem to be material to the grand jury investigation where specifically a conversation occurred a year earlier within the “Ravenite” but rather whether in fact a conversation did occur at the Ravenite between the defendant and John Gotti. Further, it appears from the tapes that the Government also knew specifically where the conversation occurred and, thus, it would not seem material or relevant to support a charge such as presented in Count Three. Affidavit of David A. DePetris ¶!¶ 4-5. Coiro’s first argument is that the substance of count two of the indictment duplicates that of count one; the indictment, he concludes, is therefore fatally multiplicious. However, an indictment is not multiplicious simply because it charges separate falsehoods during a single appearance before a grand jury. See United States v. Berardi, 629 F.2d 723, 729 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). Rather, each falsehood to which a grand jury witness testifies may be the subject of a separate perjury count if each one requires the establishment of separate facts. United States v. Doulin, 538 F.2d 466, 471 (2d Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976). Or, as the Eleventh Circuit has stated the principle more fully: In United States v. De La Torre, 634 F.2d 792, 795 (5th Cir.1981), this court expounded the standard for multiplicity in prosecutions under 18 U.S.C. § 1623 [perjury before grand jury or court]: “Separate and distinct false declarations in ... testimony, which require different factual proof of falsity, may properly be charged in separate counts, albeit they are all related and arise out of the same transaction or subject matter.” Thus, as long as “[different evidence [is] required to establish that the various responses were false,” id., a multiple count indictment is technically sound and not multi-plicious. United States" }, { "docid": "21596089", "title": "", "text": "been arrested? A: No. Q: Have you ever been charged by State or Federal authorities with any crime? A: No. Q: Really, I’m not asking whether you’ve been convicted; Pm asking whether you’ve been charged? A: No, not that I remember. At trial, the government presented testimony to show that Kross was aware of the use and cultivation of the marijuana by Park residents. Evidence also showed that Kross had been charged with felonies in Vermont state court in 1980 and 1990. II. Discussion Kross argues that the district court erred in denying her pretrial motion to dismiss the indictment on the grounds that the information sought in the deposition was immaterial to the underlying forfeiture proceeding, that the deposition questions at issue were fundamentally ambiguous and that her statements were literally true. A. Materiality Section 1623(a) of Title 18 of the United States Code provides, in relevant part: Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. (Emphasis supplied). Kross contends that the indictment should have been dismissed because none of her allegedly false declarations were material to the civil forfeiture action. We disagree. We have consistently held in the grand jury context that a false declaration is “material” within the meaning of § 1623 when it has “‘a natural effect or tendency to influence, impede or dissuade the grand jury from pursuing its investigation.’ ” United States v. Kiszewski 877 F.2d 210, 218 (2d Cir.1989) (quoting United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980)). We have pointed out that in a § 1623 prosecution for false declarations to a grand jury, [mjatters arguably cumulative or collateral to the grand jury’s objective in a given case are considered for" }, { "docid": "5723193", "title": "", "text": "(7th Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981); United States v. Thompson, 637 F.2d 267, 268 (5th Cir.1981); United States v. Berardi, 629 F.2d 723, 727 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). Materiality for purposes of § 1623 is broadly defined as a statement’s “effect or tendency to impede, influence, or dissuade the grand jury from pursuing its investigation.” United States v. Picketts, 655 F.2d at 839 (quoting United States v. Devitt, 499 F.2d 135, 139 (7th Cir.1974)). Mere potential interference with a line of inquiry is sufficient to establish materiality. United States v. Howard, 560 F.2d 281 (7th Cir.1977). However, it is the government’s burden to establish a nexus between the grand jury’s investigation and the defendant’s false statements by presenting some evidence about the scope of the investigation. This can be done by any of a variety of means. The foreperson or some other member of the grand jury may be called to establish the investigation’s scope, United States v. Byrnes, 644 F.2d 107 (2d Cir.1981); United States v. Saenz, 511 F.2d 766 (5th Cir.1975), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1976). The attorney who presented the government’s case to the grand jury might be called to testify, United States v. Berardi, 629 F.2d 723 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); United States v. Cuesta, 597 F.2d 903 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). The transcript of the grand jury proceedings might be introduced into evidence, United States v. Picketts, 655 F.2d 837 (7th Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 602, 70 L.Ed.2d 592 (1981), or the indictments returned by the grand jury might be examined, United States v. Bell, 623 F.2d 1132 (5th Cir.1980). The events at issue in this case occurred before two separate grand juries. The government called Charlene Heffner from the district court clerk’s office, who testified that a grand jury was impaneled in March 1980, and" }, { "docid": "21545301", "title": "", "text": "influence, impede or dissuade the grand jury from pursuing its investigation,’ ” United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980) (quoting Carroll v. United States, 16 F.2d 951, 953 (2d Cir.), cert. denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927)). The false statement does not have to be related to the principal objective of the grand jury to be material; statements concerning collateral matters may be material as well. Id. We have said that “[m]ateriality is demonstrad ed if the question posed is such that a truthful response could potentially aid the inquiry or a false answer hinder it.” United States v. Moon, 718 F.2d 1210, 1237 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). Kiszewski’s statements regarding the timing of the FBI’s involvement were material because a grand jury should be able to find out how the government became involved in investigating a possible crime, and whether the government’s involvement rises to the point where the accused should not be indicted. It is true that the second grand jury indicted Mauro and Okun despite Kiszewski’s false testimony as to the timing of the FBI’s involvement. But this testimony could have convinced the grand jury that Mauro and Okun did not commit any crimes and was, therefore, material. Indeed, the grand jury asked the Assistant United States Attorney about the matter. Similarly, on count five, regardless of whether the victim’s fear is an element of the crime, the grand jury could certainly have considered the victim’s fear in determining whether he had been threatened, and the threats were the principal focus of the investigation. Therefore, the false statements in count five were material under the standard in this circuit. As to counts three and four, the government argues that appellant did not make question-by-question objections in the trial court, and thus did not preserve the issue for appellate review. United States v. Bonacorsa, 528 F.2d 1218, 1222 (2d Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2647," }, { "docid": "14260272", "title": "", "text": "the grand jury clearly exculpatory evidence as to the Moon tax evasion investigation. Kamiyama also argues that the Government had a special obligation to refresh his recollection because the events about which he testified occurred eight years prior to his grand jury appearance. We cannot accept this contention under the circumstances of this case. The Government had notified the defendant in the early spring of 1981 that he was a target of a grand jury investigation. In June 1981, just one month prior to his grand jury appearance, Kamiyama submitted to the Government an affidavit concerning the matters that form the basis for counts nine and ten of the indictment. This simply is not a situation in which an unsuspecting witness is trapped by questions concerning insignificant events in the past. Cf. United States v. Phillips, 540 F.2d 319, 322 n.8 (8th Cir.) (indictment not dismissed when Government neither solicited nor encouraged the alleged perjury), cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611 (1976); United States v. Nickels, 502 F.2d 1173, 1176 (7th Cir. 1974) (same), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). III. Materiality of the Perjury Kamiyama has also moved to dismiss counts nine, ten, twelve, and thirteen on the ground that the allegedly false answers were not material to the grand jury’s inquiry, a sine qua non of a perjury charge. Initially, a few general observations regarding materiality are in order. Because of the investigative function of grand juries, the concept of materiality in the context of a grand jury inquiry is quite broad and liberally construed. United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); accord, United States v. Byrnes, 644 F.2d 107, 111 (2d Cir. 1981). Thus, the Second Circuit in Berardi stated that [materiality is . . . demonstrated if the question posed is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability. Thus, in" }, { "docid": "1491012", "title": "", "text": "the grand jury proceedings, United States v. Cosby, 601 F.2d 754 (5 Cir.1979); or having the attorney who presented the case to the grand jury testify. United States v. Berardi, 629 F.2d 723 (2 Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). Concededly, the government used none of these means. However, as the Fifth Circuit has explicitly held, the traditional methods are not the only means of establishing the scope of the grand jury’s investigation. United States v. Thompson, 637 F.2d 267, 269 (5 Cir.1981). In United States v. Bailey, 769 F.2d 203, 204 (4 Cir.1985), we implicitly subscribed to the view that any evidence tending to show the scope of the investigation is competent to establish materiality. In that case, we held that the introduction of the defendant’s grand jury testimony, coupled with the testimony of another grand jury witness as to the nature of the questions asked of her, sufficed to establish the scope of the grand jury’s investigation. Id. While the government must establish a nexus between the investigation and the false declaration, it need not prove the connection beyond a reasonable doubt. See, e.g., Berardi, 629 F.2d at 727. Given the wide-ranging investigative function of the grand jury, United States v. Calandra, 414 U.S. 338, 343-44, 94 S.Ct. 613, 617-18, 38 L.Ed.2d 561 (1974), the materiality of any line of inquiry pursued by a grand jury must be broadly construed. Berardi, 629 F.2d at 728; Paolicelli, 505 F.2d at 974. In the instant case, the district court had before it testimonial evidence that the grand jury was inquiring into tax matters involving Joseph Griggs Associates. Farnham’s grand jury testimony shows that the grand jury in fact exercised its broad investigatory powers to inquire into collateral wrongdoing in the form of false statements to HUD. Although disfavoring the use of only a partial transcript of grand jury proceedings, the Seventh Circuit has upheld the use of a partial transcript including only the defendant’s grand jury testimony where the court could determine from the transcript the subject of the grand jury investigation. McComb," }, { "docid": "22815959", "title": "", "text": "No. 194 that Kamiyama gave the testimony knowing it to be false. Kamiyama now challenges the district court’s materiality finding. He argues that the substitute grand jury could not, as a matter of law, constitute an ancillary proceeding; that there was no evidence that the substitute grand jury was ancillary; that the district court erred in ruling on the ancillary proceeding question rather than submitting it to the petit jury; and that the district court impermissibly amended the indictment by relying on the ancillary proceeding theory which was not set out in the indictment. Moreover, he contends that there was insufficient evidence that his misstatements were material to the Grand Jury which eventually heard them. For the reasons discussed below these arguments are of no avail. Section 1623 proscribes false declarations made before a grand jury where those declarations are “material,” i.e., made in response to questions within the purview of matters that the grand jury is investigating. United States v. Berardi, 629 F.2d 723, 727 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); see United States v. Mulligan, 573 F.2d 775, 779 (2d Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). Whether or not a false declaration is material to a grand jury investigation is a question of law that must be determined by the court, not the jury. Sinclair v. United States, 279 U.S. 263, 298-99, 49 S.Ct. 268, 273, 274, 73 L.Ed. 692 (1929) (dicta); Berardi, 629 F.2d at 728; Mulligan, 573 F.2d at 779. Materiality is demonstrated if the question posed is such that a truthful response could potentially aid the inquiry or a false answer hinder it. Berardi, 629 F.2d at 728. Because materiality is a question of law, an appellate court may substitute its judgment for that of the lower court on the issue of whether the materiality element has been met. See Berardi, 629 F.2d at 728-29 (holding that the district court erred in finding false declaration immaterial). Because we disagree with the district court’s holding that Kamiyama’s state ments “technically” were" }, { "docid": "23381561", "title": "", "text": "that [Dowd] understood it.\" Dissent at 1432. As we stated above, we conclude that the question posed to Dowd was not “fatally ambiguous” because it is reasonable \" ‘to expect that the defendant understood the question.' \" United States v. Ryan, 828 F.2d at 1015 (citation omitted). . See also Crocker, 568 F.2d at 1057 (“it suffices to establish that testimony ..., if false, [would] tend to impede an investigation”); United States v. Phillips, 674 F.Supp. 1144, 1148 (E.D.Pa. 1987) (\"A question asked of a grand jury witness is mateñal if it ‘is such that a truthful answer could help the inquiry, or a false response hinder it, and these effects are weighed in terms of potentiality rather than probability.... It is of no consequence that the information sought would be merely cumulative, that the response was believed by the grand jury to be perjurious at the time it was uttered, or that the matters inquired into were collateral to the principal objective of the grand jury.’ \") (emphasis in original) (quoting United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980)); United States v. Schiavo, 375 F.Supp. 475, 477 (E.D.Pa.) (\"False testimony is material if it has a natural tendency to influence the grand jury in its investigation, and there is no need to prove the perjured testimony actually impeded the jury's work. The false testimony need not be directed to the primary subject of the investigation, it is material if it is relevant to any subsidiary issue under consideration by the tribunal.”) (citing United States v. Lococo, 450 F.2d 1196, 1199 (9th Cir. 1971), cert. denied, 406 U.S. 945, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972)), aff'd, 506 F.2d 1053 (3d Cir.1974) (table). . In Williams v. United States, - U.S. -, -, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992), the Court held that where \"a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable guideline.” See also United States v." }, { "docid": "21545300", "title": "", "text": "trial of Mauro and Okun, Kiszewski argues that they should be dismissed because instead of separately specifying different falsehoods, the indictment lists pages of Kisz-ewski’s testimony. The claim is that if any statement in that testimony was not material, and some are not, then the counts must be dismissed. Finally, Kiszewski contends that count five must be dismissed because it charged him with offering contradictory evidence regarding whether he was placed in fear by the threats of Mauro and Okun, an immaterial matter because the victim’s fear is irrelevant under the extortion statute. To violate § 1623, the false declaration must be material, but materiality is a matter of law for decision by the trial judge. Therefore, this court reviews, de novo, any questions of materiality. United States v. Mancuso, 485 F.2d 275, 280 (2d Cir.1973). On the record in this case, we believe that the district court’s materiality rulings were correct. Materiality in a grand jury investigation is broad — materiality is established “where the false declaration has ‘a natural effect or tendency to influence, impede or dissuade the grand jury from pursuing its investigation,’ ” United States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980) (quoting Carroll v. United States, 16 F.2d 951, 953 (2d Cir.), cert. denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927)). The false statement does not have to be related to the principal objective of the grand jury to be material; statements concerning collateral matters may be material as well. Id. We have said that “[m]ateriality is demonstrad ed if the question posed is such that a truthful response could potentially aid the inquiry or a false answer hinder it.” United States v. Moon, 718 F.2d 1210, 1237 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). Kiszewski’s statements regarding the timing of the FBI’s involvement were material because a grand jury should be able to find out how the government became involved in investigating a possible crime, and whether the government’s involvement rises" } ]

[ { "docid": "23081378", "title": "", "text": "admitted the existence of electronic surveillance, 18 U.S.C. § 3504, but asserted that all information gleaned was the product of wiretaps authorized by court order. In the Lochiatto cases the district court refused to examine any of the government documents or the court orders and denied the defendants’ motion for their discovery. The court sealed all the documents for appeal, and, rejecting their claim to the husband-wife privilege not to testify, held the Lochiattos in contempt. Their contempt sentences were stayed pending appeal. Dunn’s case was treated somewhat differently. The court denied discovery but reviewed in camera the court orders authorizing the wiretaps and found them to be facially sound. It then held Dunn in contempt, 28 U.S.C. § 1826(a). This court stayed the district court order committing Dunn and admitted him to bail pending appeal. The appellants’ central contention in these appeals is that the defendant in contempt proceedings has a right to reasonable disclosure of the court orders, government affidavits, documents, and materials submitted to support the order; disclosure of the products of surveillance or reports to the court; and a plenary evidentiary hearing to determine whether the wiretap orders were granted and surveillance conducted in compliance with statutory and constitutional requirements. Even if they were not entitled to such discovery, the Lochiattos asserted at minimum a right to in camera review of the materials to resolve these issues. The problem posed by these cases, where the interceptions were pursuant to court order, is that which the Supreme Court declined to examine in Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). It requires evaluation of conflicting public interests that must be identified and weighed to strike a practicable balance between statutory rights and the efficient administration of the grand jury. The appellants contend that without disclosure they cannot meaningfully assert their combined rights under 18 U.S.C. § 2515 and 18 U.S.C. § 2518(10) (a), which together afford a defense to contempt proceedings where there is wiretap evidence “(i) . . . [which] was unlawfully intercepted; (ii) [where] the order of authorization or" } ]

[ { "docid": "22022512", "title": "", "text": "conformity with the order the party must be able to compare the terms of the order with the reality of the manner in which the interception was carried out. This, again, necessitates that the party have access to the order. I recognize that In re Lochiatto, 497 F.2d 803 (1st Cir. 1974), provides a modicum of support for the government’s position that the validity of the wiretap may be determined by the court in camera, but that case involved a grand jury witness and I agree with In re Pérsico, 491 F.2d 1156, 1161-62 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199,42 L.Ed.2d 158, reh. denied, 419 U.S. 1060, 95 S.Ct. 645, 42 L.Ed.2d 657 (1974), that such a person is not entitled to make the Section 2518(10)(a) suppression motion. I therefore find Lochiatto distinguishable from the case sub judice. The government’s third argument is that construing Section 2518(9) as a mandatory disclosure provision is inconsistent with Section 2518(8)(b) which provides for sealing of the wiretap application and order and disclosure only upon a showing of good cause. The attempted analogy between Sections 2518(8) and 2518(9) must fail, however, because the two sections do not operate in the same context. Section 2518(8) establishes a procedural framework for providing notice to those who have been the target of an actual or attempted wiretap or whose conversations have been overheard regardless of whether or not they have become the subject of a specific charge of wrongdoing. See Petition of Leppo, 497 F.2d 954, 956 (5th Cir. 1974); United States v. Best, 363 F.Supp. 11, 19-21 (S.D.Ga.1973); United States v. Lanza, 341 F.Supp. 405, 420-21 (M.D.Fla.1972); Application of United States, supra. However, Section 2518(9) applies only to those who are facing a trial or other adversary proceedings, that is those against whom the government has sought the infliction of some form of punishment. This distinction was recognized by the Ninth Circuit in United States v. Chun, 503 F.2d 533 (1974). Section 2518(8)(d) was clearly meant to provide this post-use notice. The Senate Report on that subparagraph states: “Yet the intent of" }, { "docid": "23507507", "title": "", "text": "limited is demonstrated by the language of the Senate Report that the scope of a suppression order granted “in another context” may extend to a “future grand jury proceeding,” that is, may extend only to a grand jury proceeding which clearly postdates the proceeding “in another context.” Therefore the term “another context” could not have been intended to include a hearing on a contempt citation contemporaneous with the grand jury proceeding. We hold that in contempt proceedings initiated when a witness who has been granted “derivative use” immunity refuses to answer questions propounded by a grand jury because he claims he is entitled to a hearing to ascertain whether the questions posed are the product of unlawful electronic surveillance the witness is not entitled to a plenary suppression hearing to test the legality of that surveillance. We hold that the refusal would be permissible only if there is an absence of a necessary court order or if there is a concession from the Government that the surveillance was not in conformity with statutory requirements or if there is a prior judicial adjudication that the surveillance was unlawful. Here there were three court orders. Inasmuch as Judge Judd conducted an in camera inspection to ascertain whether they complied with the statute and found that they did comply, Pérsico received all that he was entitled to receive. He therefore has no basis for complaint that his motions for suppression hearings were denied. Pérsico also asserts that the procedure provided for by Rule 42 of the Federal Rules of Criminal Procedure establishes the procedure which should have been, but was not, followed in this case. This contention is without merit. Rule 42 applies only in those contempt proceedings in which the purpose is punitive, i. e., in criminal contempt proceedings. Here Pérsico has the power to secure his own release from confinement by agreeing to answer the question he refused to answer. Thus, the purpose of holding Pérsico in contempt was to coerce him to answer the grand jury’s question and was not to punish him for reprehensible conduct. Pérsico was only a" }, { "docid": "23507501", "title": "", "text": "18 U.S.C. §§ 2511(1), 2517(3).” The Court left undecided the issue of “whether [witnesses] may refuse to answer questions if the interceptions of their conversations were pursuant to court order.” Id. at 61 n. 22, 92 S.Ct. at 2368. Here appellant urges that the mere existence of a court order should not preclude the witness from fully litigating in the contempt proceeding the lawfulness of the surveillance. We disagree. Although the Gelbard footnote technically left “undecided” the scope of any inquiry designed to determine the legality of a court-ordered surveillance, a careful examination of that decision is revealing. Mr. Justice White in a concurring opinion supplied the decisive vote for the majority’s reversal of the Ninth Circuit’s holding in Gelbard, 443 F.2d 837 (1971). In that opinion he intimated, 408 U.S. at 70, 92 S.Ct. at 2372, 33 L.Ed.2d 179, that when, during grand jury proceedings, the Government does produce a court order the traditional notion that the functioning of the grand jury system should not be impeded or interrupted could prevail at that time over the witness’s interest in exploring in depth the validity of the surveillance. Where the Government produces a court order for the interception, however, and the witness nevertheless demands a full-blown suppression hearing to determine the legality of the order, there may be room for striking a different accommodation between the due functioning of the grand jury system and the federal wiretap statute. Suppression hearings in these circumstances would result in protracted interruption of grand jury proceedings. At the same time, prosecutors and other officers who have been granted and relied on a court order for the interception would be subject to no liability under the statute, whether the order is valid or not; and, in any event, the deterrent value of excluding the evidence will be marginal at best. Congressional concern over disruption of smooth and efficient operation of the grand jury system is found in the legislative history of Chapter 119, also. Senate Report No. 1097, printed in 1968 U.S.Code Cong. & Admin.News p. 2112, appears to controvert Persico’s contention that in defending" }, { "docid": "23507495", "title": "", "text": "WATERMAN, Circuit Judge: This is an appeal from an adjudication of civil contempt pursuant to 28 U.S.C. § 1826(a) for refusal to answer a question propounded by a grand jury. Appellant refused to answer certain earlier questions on constitutional grounds and was granted “use” and “derivative use” immunity. Then, after answering a few questions, he objected to a particular question and, relying on Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), maintained that the question was derived from electronic surveillance which he claimed was presumptively illegal. The Government eventually acknowledged that the line of questioning the grand jury had been pursuing was a product of the electronic interception of oral communications but strenuously affirmed that the surveillance was conducted under proper court orders and was in complete conformity with the requirements of federal law under 18 U.S.C. §§ 2510-2520. We are thus called upon to decide whether appellant, in defending the contempt action brought against him when he refused, though granted “use” and “derivative use” immunity, to answer before a Grand Jury a question derived from electronic surveillance conducted under court order, has a right in a civil contempt proeeed ing to litigate the legality of that surveillance. We hold that he does not. The facts in this case are not complex. On January 23, 1974, appellant was called as a witness before a federal grand jury “investigating racketeering influence in legitimate business.” Relying on his Fifth Amendment privilege, he initially refused to answer any questions concerning his employment. Thereupon, pursuant to 18 U.S.C. §§ 6002 and 6003 Pérsico was granted “use” and “derivative use” immunity. At this point appellant continued to be recalcitrant and began to object to questioning with reference to his employment on the ground that the questions were the product of illegal electronic surveillance. The Government requested that Judge Orrin Judd issue a contempt citation for refusal to testify. Judge Judd regarded the request as premature and, not perceiving any connection between the question and the surveillance, ordered Pérsico to testify under threat of contempt. Pérsico then answered some questions" }, { "docid": "22022500", "title": "", "text": "on In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158, reh. denied, 419 U.S. 1060, 95 S.Ct. 645, 42 L.Ed.2d 657 (1974), the government con tends that the court should conduct only a limited in camera inspection of the interception order and supporting papers to determine their facial validity. In Pérsico the court adopted the position espoused in Justice White’s concurring opinion in Gelbard and held that a grand jury witness was not entitled to a full suppression hearing prior to answering questions based on electronic surveillance where the government produced a court order authorizing such surveillance. The court concluded that only where the illegality of the surveillance may be established without resort to a suppression hearing, that is where the government either has admitted its illegality or failed to produce a court order or where the illegality has been determined in a prior judicial proceeding, could a grand jury witness rely on Section 2515 as a defense to a contempt charge. Id. at 1161. The government’s reliance on Pérsico here is misplaced. The Pérsico court based its decision on legislative history revealing Congress’ understanding that the statutory exclusionary rule contained in Section 2515 would be limited by Section 2518(10)(a), which governs the class of persons entitled to make a motion to suppress and that the latter section did not extend to grand jury witnesses. Id. But while the legislative history of Section 2518(10)(a) clearly does show an intent to exclude grand jury witnesses from the class entitled to make a motion to suppress, it evinces no similar intent with respect to a person facing probation revocation. More importantly, the legislative history of Section 2518(9) affirmatively shows that a probationer subject to revocation proceedings may invoke the suppression motion provided for in Section 2518(10)(a). Paragraph 9 provides that the contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any Federal or State trial, hearing, or other proceeding unless each party not less than 10 days before the" }, { "docid": "1229840", "title": "", "text": "OPINION PER CURIAM: Joseph Bernard Droback appeals an order adjudging him in contempt of court for refusing to testify before a federal grand jury after the court granted him immunity under 18 U.S.C. §§ 6002-6003, and ordered him to testify. We affirm. The only issue is whether a grand-jury witness whose identity and possible knowledge of crime have been discovered through a court-ordered wiretap may, by refusing to testify, delay the proceedings while he conducts a plenary challenge of the electronic surveillance. He may not. In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158 (1974). Droback contends that In re Lochiatto, 497 F.2d 803 (1st Cir. 1974), compels a contrary result. We disagree. But even if Lochiatto conflicts in part with Pérsico, we believe that Pérsico more accurately reflects congressional policy authorizing a narrow range of court-ordered wiretaps than does Lochiatto. Droback’s interpretation of the cases would require the grand-jury investigation of any witness to come to a halt any time the witness chooses to assert some latent defect in the court order or its underlying papers, or some defect in the conduct of the surveillance. We decline to hold that an immunized witness can stop the investigation, assert his list of objections, proceed with comprehensive discovery, and ultimately have a full-fledged suppression hearing to determine whether or not the court order allowing the surveillance or the manner of its execution is vulnerable to some attack. The immune witness is, in effect, seeking to convert his contempt proceeding into a bystander’s action to test the legality of a surveillance program which is likely to produce evidence against one or more of his associates. We doubt that Congress intended to permit such delays, and, in the absence of Supreme Court direction to do so, we will not reach that result. Affirmed." }, { "docid": "8577071", "title": "", "text": "due functioning of the grand jury system and the federal wiretap statute. Suppression hearings in these circumstances would result in protracted interruption of grand jury proceedings. At the same time, prosecutors and other officers who have been granted and relied on a court order for the interception would be subject to no liability under the statute, whether the order is valid or not; and, in any event, the deterrent value of excluding the evidence will be marginal at best.” 408 U.S. at 70, 92 S.Ct. at 2372. In Pérsico we adopted Justice White’s suggestion. We found that the legislative history of section 2518(10), the only provision in Title 119 that specifically provides for suppression hearings, indicates that Congress did not intend Title 119 to interfere with traditional methods of conducting grand jury proceedings so long as the interception is not patently illegal: “As noted, though Congress prescribed that illegal wiretap evidence must be excluded from all grand jury proceedings, hearings to suppress evidence were not to be permitted during such proceedings. These seemingly inconsistent policy determinations can be reconciled only by interpreting the statute as requiring exclusion only when it is clear that a suppression hearing is unnecessary, as when the Government concedes that the electronic surveillance was unlawful or when the invalidity of the surveillance is patent, such as, for example, when no prior court order was obtained, or when the unlawfulness of the Government’s surveillance has been established in a prior judicial proceeding. In these situations both statutory policies — the exclusion of illegally acquired evidence and the maintenance of unimpeded grand jury proceedings —are served. But where illegality is claimed and, if established, can be established only by way of a plenary suppression hearing, one important aim of the legislation would be frustrated.” 491 F.2d at 1161-1162. The appellees do not claim that their case is one in which the tapes of their conversations should or may be suppressed without a hearing; in fact they ultimately seek a hearing on their motion to suppress. Rather they argue that Pérsico does not govern this case because they are" }, { "docid": "23507497", "title": "", "text": "regarding his lawful employment but refused to respond to a question regarding “any other occupation.” This refusal was again based on appellant’s contention that the question was a “fruit” of illegal electronic surveillance. The Government, conceding that this question was derived from electronic surveillance, argued that the surveillance, which was conducted pursuant to three court orders, was entirely legal. Judge Judd inspected the court orders in camera, found them to be proper, refused to grant appellant’s motion that a suppression hearing be held to test the legality of the surveillance, and renewed his order to testify. Pérsico returned to the grand jury where he acknowledged that he did indeed have other business interests, more particularly, an illegal gambling business involving “horses, sports and numbers.” His cooperation ceased, however, when he was asked to identify the individuals who worked for him in these surreptitious enterprises. He again grounded his objections, inter alia, on the alleged illegality of the electronic surveillance which was the source of the question, saying: “You know the answer to that question as a result of electronic surveillance of my home.” Upon this refusal to respond, Judge Judd held Pérsico to be in contempt and sentenced him to 60 days in jail, subject, however, to immediate release should appellant decide to answer the question. Pérsico then reinstituted his motion to suppress and claimed the right to examine the court orders and accompanying documents under which the three wiretaps had been authorized. This motion was denied. A concurrent motion for bail pending appeal was likewise unsuccessful. On January 28, 1974, we also denied Persico’s separate application to us for bail pending appeal, but, a notice of appeal on the merits having been filed on January 25, we ordered that the appeal be speedily brought on, and it was argued on February 5. Chapter 119 of Title 18 of the United States Code, entitled “Wire Interception and Interception of Oral Communications,” 18 U.S.C. §§ 2510-2520, represents an assiduous congressional effort to balance the individual’s right to privacy against the Government’s legitimate interest in gathering information necessary for the prosecution of" }, { "docid": "15099998", "title": "", "text": "F.2d at 728. We affirm the order in the instant case as well, not only because of the belated nature of the claim, as in Tse, but because the government, we think, was not fully responsible for the arguable deficiencies in its initial response. Sergeant McGreal was present at the contempt hearing, and the record reveals that the government was prepared to put him on the stand. Instead, following Agent Horan’s testimony, the district court deemed the government’s response sufficient and terminated the hearing. Under such circumstances, we cannot fully fault the government for not insisting on the presentation of further evidence. The order of contempt is affirmed. . A court may hold in civil contempt any grand jury witness who \"refuses to testify without just cause shown to comply with an order of the court to testify_” 28 U.S.C. § 1826(a). A showing that the questioning of such a witness was based on illegal electronic surveillance constitutes \"just cause\" for refusing to testify and precludes a finding of contempt. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); In re Grand Jury Proceedings, 786 F.2d 3, 7 (1st Cir.1986) (per curiam). . As here applicable, 18 U.S.C. § 3504(a) requires that, \"upon a claim\" by a grand jury witness that the questioning is based on illegal electronic surveillance, \"the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful\" surveillance. .In their affidavits, described more fully below, the several government investigators and attorneys characterize the 1985 surveillance as \"court-authorized.\" They also indicate that information derived therefrom was subsequently used at the trial of appellant's father (resulting in his conviction for narcotics offenses) — with the implication that the surveillance was determined to have been legal. The authorizing documents, however, have not been turned over to appellant for inspection as required by In re Lochiatto, 497 F.2d 803, 807-08 (1st Cir.1974); see also In re Grand Jury, 851 F.2d 499, 500 (1st Cir.1988) (per curiam); In re Mintzer, 511 F.2d 471, 472 n. 1 (1st Cir.1974) (per curiam), and no effort" }, { "docid": "22022529", "title": "", "text": "the surveillance required an adversary proceeding. See also Taglianetti v. United States, 394 U.S. 316, 317, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969) (per curiam). These and several other cases cited by the government involved pre-Title III wiretaps and were decided on fourth amendment rather than statutory grounds. Here the basis of my decision is Section 2518(9), the plain language of which makes disclosure of the application and order mandatory for those, such as petitioner, entitled to make the statutory suppression motion. . Not only the contents of the application and order, but also their very existence may be protected from disclosure at least temporarily under the provision of Section 2518(8)(d) allowing for the postponement of service of the post-intercept inventory on an ex parte showing of good cause. But this section may not be invoked to delay disclosure of the application and order beyond the point when it is required to be made under Section 2518(9) to a party facing a “proceeding.” See United States v. Eastman, 465 F.2d 1057, 1063 n. 13 (3d Cir. 1972). . Notice must be given to the targets of a wiretap application that has not been approved by the court. See Section 2518(8)(d). . Grand jury witnesses fall into this category, which also explains why they are excluded from the class entitled to make the Section 2518(10)(a) suppression motion. The purpose of calling a witness before the grand jury is not to inflict punishment upon him but to secure the information he possesses with regard to a matter under investigation. In cases such as Pérsico and Lochiatto prosecution for contempt was not sought as an end in itself but only as a means of forcing the witness to provide the requested information. . The legislative history of Section 2518(8)(b) does contain the following statement, “Applications and orders may not be disclosed except incidental to the disclosure or use of the records themselves after a showing of good cause, for example, under [Section 2518](10)(a) discussed below.” S.Rep.No.1097, supra, 1968 U.S.Code Cong. & Adm.News, at p. 2194. In view of the clearly directory character of" }, { "docid": "22022498", "title": "", "text": "with the majority over the right of a grand jury witness to raise Section 2515 as a defense to a contempt charge brought for failure to answer questions based on information obtained through allegedly unlawful wiretapping, even the dissenters in Gelbard agreed that the statute “prohibits the use of illegally overheard . . . communications before grand juries as well as other governmental bodies.” Id. at 72-73, 92 S.Ct. at 2373-74 (Rehnquist, J., dissenting). In Calandra, Mr. Justice Powell, who was one of the dissenters in Gelbard, offered the following explanation for the differing results reached in the two cases: The dissent’s reliance on Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), is misplaced. . The Court’s holding [in Gelbard] rested exclusively on the interpretation of Tit. III, which represented a congressional effort to afford special safeguards against the unique problems posed by misuse of wiretapping and electronic surveillance. There was no indication, in either Gel-bard or the legislative history, that Tit. Ill was regarded as a restatement of existing law with respect to grand jury proceedings. As Mr. Justice White noted in his concurring opinion in Gelbard, Tit. III “unquestionably works a change in the law with respect to the rights of grand jury witnesses . . . ” 408 U.S. at 70, 92 S.Ct. at 2372. Calandra, supra at 355 n. 11, 94 S.Ct. at 623 (emphasis added). Taken together, the combined force of Gelbard, Calandra, and the plain language of Section 2515 are sufficiently compelling to override the single passage in the legislative history relied on in Caron and to convince me that the statute does indeed create a broader exclusionary rule than the judicially-created one. And since it cannot be disputed that a probation revocation proceeding is a “proceeding” within the meaning of Section 2515, I conclude that the statutory exclusionary rule is applicable here. The government’s fallback position is that even if the exclusionary rule does apply to probation revocation proceedings, the respondent is not entitled to a fullblown suppression hearing on the legality of the interceptions. Rather, relying" }, { "docid": "23507496", "title": "", "text": "a Grand Jury a question derived from electronic surveillance conducted under court order, has a right in a civil contempt proeeed ing to litigate the legality of that surveillance. We hold that he does not. The facts in this case are not complex. On January 23, 1974, appellant was called as a witness before a federal grand jury “investigating racketeering influence in legitimate business.” Relying on his Fifth Amendment privilege, he initially refused to answer any questions concerning his employment. Thereupon, pursuant to 18 U.S.C. §§ 6002 and 6003 Pérsico was granted “use” and “derivative use” immunity. At this point appellant continued to be recalcitrant and began to object to questioning with reference to his employment on the ground that the questions were the product of illegal electronic surveillance. The Government requested that Judge Orrin Judd issue a contempt citation for refusal to testify. Judge Judd regarded the request as premature and, not perceiving any connection between the question and the surveillance, ordered Pérsico to testify under threat of contempt. Pérsico then answered some questions regarding his lawful employment but refused to respond to a question regarding “any other occupation.” This refusal was again based on appellant’s contention that the question was a “fruit” of illegal electronic surveillance. The Government, conceding that this question was derived from electronic surveillance, argued that the surveillance, which was conducted pursuant to three court orders, was entirely legal. Judge Judd inspected the court orders in camera, found them to be proper, refused to grant appellant’s motion that a suppression hearing be held to test the legality of the surveillance, and renewed his order to testify. Pérsico returned to the grand jury where he acknowledged that he did indeed have other business interests, more particularly, an illegal gambling business involving “horses, sports and numbers.” His cooperation ceased, however, when he was asked to identify the individuals who worked for him in these surreptitious enterprises. He again grounded his objections, inter alia, on the alleged illegality of the electronic surveillance which was the source of the question, saying: “You know the answer to that question as" }, { "docid": "22022499", "title": "", "text": "existing law with respect to grand jury proceedings. As Mr. Justice White noted in his concurring opinion in Gelbard, Tit. III “unquestionably works a change in the law with respect to the rights of grand jury witnesses . . . ” 408 U.S. at 70, 92 S.Ct. at 2372. Calandra, supra at 355 n. 11, 94 S.Ct. at 623 (emphasis added). Taken together, the combined force of Gelbard, Calandra, and the plain language of Section 2515 are sufficiently compelling to override the single passage in the legislative history relied on in Caron and to convince me that the statute does indeed create a broader exclusionary rule than the judicially-created one. And since it cannot be disputed that a probation revocation proceeding is a “proceeding” within the meaning of Section 2515, I conclude that the statutory exclusionary rule is applicable here. The government’s fallback position is that even if the exclusionary rule does apply to probation revocation proceedings, the respondent is not entitled to a fullblown suppression hearing on the legality of the interceptions. Rather, relying on In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158, reh. denied, 419 U.S. 1060, 95 S.Ct. 645, 42 L.Ed.2d 657 (1974), the government con tends that the court should conduct only a limited in camera inspection of the interception order and supporting papers to determine their facial validity. In Pérsico the court adopted the position espoused in Justice White’s concurring opinion in Gelbard and held that a grand jury witness was not entitled to a full suppression hearing prior to answering questions based on electronic surveillance where the government produced a court order authorizing such surveillance. The court concluded that only where the illegality of the surveillance may be established without resort to a suppression hearing, that is where the government either has admitted its illegality or failed to produce a court order or where the illegality has been determined in a prior judicial proceeding, could a grand jury witness rely on Section 2515 as a defense to a contempt charge. Id. at 1161." }, { "docid": "8577070", "title": "", "text": "408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). We rejected that argument, noting that while the Gelbard court held that in a contempt proceeding a witness who refuses to testify before a grand jury may avail himself of the defense that the question is derived from unauthorized electronic surveillance, it did not decide “whether [witnesses] may refuse to answer questions if the interceptions of their conversations were pursuant to court order.” 408 U.S. at 61 n. 22, 92 S.Ct. at 2368. Nevertheless, Mr. Justice White, writing a separate opinion supplying the decisive vote, see 408 U.S. at 69, 92 S.Ct. 2357, suggested that, if an interception is supported by a court order, requiring a hearing as to the validity of the order would be an unwarranted infringement upon the traditional prerogatives of the grand jury: “Where the Government produces a court order for the interception . and the witness nevertheless demands a full-blown suppression hearing to determine the legality of the order, there may be room for striking a different accommodation between the due functioning of the grand jury system and the federal wiretap statute. Suppression hearings in these circumstances would result in protracted interruption of grand jury proceedings. At the same time, prosecutors and other officers who have been granted and relied on a court order for the interception would be subject to no liability under the statute, whether the order is valid or not; and, in any event, the deterrent value of excluding the evidence will be marginal at best.” 408 U.S. at 70, 92 S.Ct. at 2372. In Pérsico we adopted Justice White’s suggestion. We found that the legislative history of section 2518(10), the only provision in Title 119 that specifically provides for suppression hearings, indicates that Congress did not intend Title 119 to interfere with traditional methods of conducting grand jury proceedings so long as the interception is not patently illegal: “As noted, though Congress prescribed that illegal wiretap evidence must be excluded from all grand jury proceedings, hearings to suppress evidence were not to be permitted during such proceedings. These seemingly inconsistent policy" }, { "docid": "22022511", "title": "", "text": "to file “definite, specific, detailed and nonconjectural” moving papers so as to obtain a hearing if he is not provided with a copy of the wiretap application and order. This is true regardless of the grounds upon which the motion is based. Without access to the wiretap application the party against whom the government is proceeding would not know the information presented to the judge who approved the interceptions and could not challenge its accuracy nor could his counsel make an intelligent assessment of whether the application established probable cause. The party therefore would be in no position to assert (except in a conclusory fashion) that the communications were unlawfully intercepted. Denial of access to the application and order also would effectively preclude motions to suppress based on the second and third statutory grounds. Obviously, a party cannot argue that the wiretap authorization is facially insufficient unless he has an opportunity to review the face of the authorization. And to determine whether it would be fruitful to argue that the interception was not made in conformity with the order the party must be able to compare the terms of the order with the reality of the manner in which the interception was carried out. This, again, necessitates that the party have access to the order. I recognize that In re Lochiatto, 497 F.2d 803 (1st Cir. 1974), provides a modicum of support for the government’s position that the validity of the wiretap may be determined by the court in camera, but that case involved a grand jury witness and I agree with In re Pérsico, 491 F.2d 1156, 1161-62 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199,42 L.Ed.2d 158, reh. denied, 419 U.S. 1060, 95 S.Ct. 645, 42 L.Ed.2d 657 (1974), that such a person is not entitled to make the Section 2518(10)(a) suppression motion. I therefore find Lochiatto distinguishable from the case sub judice. The government’s third argument is that construing Section 2518(9) as a mandatory disclosure provision is inconsistent with Section 2518(8)(b) which provides for sealing of the wiretap application and order and disclosure only upon" }, { "docid": "22022527", "title": "", "text": "no substitute for furnishing the application and order because the transcript of what was actually overheard would be of no assistance in determining if there was probable cause for the interception in the first place. . Where the suppression motion is based upon the manner in which the interception was carried out, i. e. that it was not in conformity with the order of authorization, it is possible that the movant will desire access to some or all of the intercepted communications in addition to the application and order. As footnote 10 of my original opinion points out, disclosure of the communications themselves is committed to the court’s discretion. . Unlike the Second, Fifth and Ninth Circuits, see In re Persico, supra; In re Grand Jury Proceedings (Worobyzt), 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976); Droback v. United States, 509 F.2d 625 (9th Cir. 1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 450 (1975) the First Circuit in Lochiatto held that Section 2518(10)(a) does extend to a grand jury witness facing contempt proceedings. 497 F.2d at 806-07 & n. 7. Since the court also held that the validity of the wiretap could be determined in camera if the district judge, in his discretion, determined that disclosure would prejudice the government, the decision arguably would support using the same procedure here by analogy. However, as noted in the text, I agree with the courts that have held Section 2518(10)(a) inapplicable to grand jury witnesses and therefore find the analogy unpersuasive. . The government also relies on Justice Stewart’s concurring opinion in Giordano v. U. S., 394 U.S. 310, 313, 89 S.Ct. 1163, 1165, 22 L.Ed.2d 297 (1969). In that case the Justice noted that the Court’s decision in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), dealt only with the question of what procedures should be utilized to determine if the defendant’s convictions had been tainted by admittedly illegal electronic surveillance and did not hold that determination of the validity of" }, { "docid": "17940510", "title": "", "text": "PER CURIAM. The appellant was called as a witness before a grand jury. Although granted immunity for his testimony, he was recalcitrant when he appeared and was as a consequence held in contempt pursuant to 28 U.S.C. § 1826(a). The district court had, in an effort to expedite matters, permitted the witness to seek government affirmance or denial of wiretapping, under 18 U.S.C. § 3504, prior to his grand jury appearance. This was not required, because appellant was not yet an “aggrieved person” as defined by the statute. Gelbard v. United States, 408 U.S. 41, 54, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); see In re Lochiatto, 497 F.2d 803, 806 (1st Cir. 1974). But the district judge reasoned that time would be saved by extending the privilege before the witness was brought before the grand jury. The government was, then, asked to affirm or deny the existence of wiretaps at the hearing where the witness was granted immunity (October 10, 1974). In response to the court’s request of October 10 that the government affirm or deny the existence of taps, the United States Attorney submitted an affidavit on October 16 in which he swore that he knew of no electronic surveillance by which the plaintiff was aggrieved other than those conducted pursuant to E.B.D. 71-98 and E.B.D. 71-168. Appellant, however, refused to answer when called before the grand jury on October 23, and the government moved for an order of contempt on October 25. Appellant subsequently challenged the government’s disclosure as inadequate; the government then searched its files and discovered a subsequent wiretap, E.B.D. 71 — 203, revealing it at the contempt hearing on November 12. The materials, authorizations and affidavits of need along with a time-length affidavit, required by Lochiatto, 497 F.2d at 808, pertaining to all wiretaps so revealed were made available or were already in the hands of appellant’s counsel prior to the witness’ grand jury appearance. In addition, the government attorney affirmed under oath that all questions to be asked were derived exclusively from E.B.D. 71 — 98. Defendant asserts that the requirement to “affirm" }, { "docid": "23081390", "title": "", "text": "6004 in In re Kilgo, 484 F.2d 1215, 1219 (4th Cir. 1973); In re Grand Jury Investigation, 486 F.2d 1013 (3d Cir. 1973). . The Lochiattos asserted this privilege generally, that is, to avoid answering any questions. Although a grand jury’s subpoena power is limited in some regard and “it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law”, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), the privilege is not a general one. It must be asserted as to particular questions. We take special note of the fact that it cannot be asserted where immunity has been granted and the sole claim is that the testimony of one spouse may he inconsistent with the other, forming the basis for a perjury prosecution arising out of the grand jury testimony. See United States v. Doe, 478 F.2d 194 (1st Cir. 1973). Our ruling is without prejudice to subsequent assertions of the husband-wife privilege as to specific questions. . Id. at 61 n. 22, and 70 (White, J., concurring) . . Section 3504(b) states: “as used in this section ‘unlawful act’ means any act [sic] the use of any electronic, mechanical or other device ... in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.” . A witness has no standing to suppress evidence before a grand jury. Cali v. United States, 464 F.2d 475 (1st Cir. 1972). . It was at this point in Marcus that our theoretical path diverged from that taken by the Second Circuit in In Matter of Persico, 491 F.2d 1156 (2d Cir., 1974). The facts in that case were similar to those now before us. The court held that there was no right in civil contempt proceedings to litigate the legality of court ordered electronic surveillance and that at most a defendant is entitled to in camera inspection of the court order to determine facial validity. The court limited availability of the § 2518 defenses to instances where the government concedes that" }, { "docid": "23081391", "title": "", "text": "n. 22, and 70 (White, J., concurring) . . Section 3504(b) states: “as used in this section ‘unlawful act’ means any act [sic] the use of any electronic, mechanical or other device ... in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.” . A witness has no standing to suppress evidence before a grand jury. Cali v. United States, 464 F.2d 475 (1st Cir. 1972). . It was at this point in Marcus that our theoretical path diverged from that taken by the Second Circuit in In Matter of Persico, 491 F.2d 1156 (2d Cir., 1974). The facts in that case were similar to those now before us. The court held that there was no right in civil contempt proceedings to litigate the legality of court ordered electronic surveillance and that at most a defendant is entitled to in camera inspection of the court order to determine facial validity. The court limited availability of the § 2518 defenses to instances where the government concedes that surveillance was not in conformity with a court order. In reaching this conclusion the Pérsico court placed heavy reliance upon Senate reports. The reasoning of the particular Senate Report relied upon, S.Rep. No.1097, was rejected in other respects in Gelbard, supra, 408 U.S. at 60. . 28 U.S.C. § 1826(a) expressly limits citation for civil contempt to those cases where a witness “refuses without just cause shown to comply with an order of the court to testify.” Gelbard, held that a showing that interrogation would be based upon illegal interception of the witness’ communications constitutes a showing of “just cause” that precludes a finding of contempt. . See the extensive discussion of the procedural requirements ruled applicable in these cases in Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965); United States v. Alter, 482 F.2d 1016, 1020-1024 (9th Cir. 1973)." }, { "docid": "23081377", "title": "", "text": "COFFIN, Chief Judge. The appellants were held in contempt after refusal to answer questions proposed before a special grand jury investigating the making and financing of extortionate credit transactions. When first brought before the grand jury each witness refused to testify, invoking his or her Fifth Amendment right to avoid self-incrimination. They were then separately brought before district courts where the United States Attorney applied for “use” and “derivative use” immunity. 18 U.S.C. §§ 6002, 6003. Although the courts granted the immunity sought by the government and in formed the witnesses that they would be held in contempt if they continued to refuse to answer questions, they remained recalcitrant when again brought before the grand jury. Dunn answered a few of the questions but refused to respond to those he alleged were the “fruit” of illegal wiretaps. The Lochiattos refused to answer any questions, repeating Dunn’s claim and asserting any other legal privileges available to them. The government then filed petitions before the district courts and the witnesses became defendants in contempt proceedings. The government admitted the existence of electronic surveillance, 18 U.S.C. § 3504, but asserted that all information gleaned was the product of wiretaps authorized by court order. In the Lochiatto cases the district court refused to examine any of the government documents or the court orders and denied the defendants’ motion for their discovery. The court sealed all the documents for appeal, and, rejecting their claim to the husband-wife privilege not to testify, held the Lochiattos in contempt. Their contempt sentences were stayed pending appeal. Dunn’s case was treated somewhat differently. The court denied discovery but reviewed in camera the court orders authorizing the wiretaps and found them to be facially sound. It then held Dunn in contempt, 28 U.S.C. § 1826(a). This court stayed the district court order committing Dunn and admitted him to bail pending appeal. The appellants’ central contention in these appeals is that the defendant in contempt proceedings has a right to reasonable disclosure of the court orders, government affidavits, documents, and materials submitted to support the order; disclosure of the products of" } ]

[ { "docid": "3114030", "title": "", "text": "he reviewed the video of the incident, and heard live testimony from Brown and two other officers who participated in the search. The magistrate concluded that Pierce had voluntarily consented to the search and recommended that both defendants’ motions be denied. Defendants filed objections to the magistrate’s report. On review, the district court accepted the magistrate’s report and recommendations and denied both motions. Following this ruling, Price entered a conditional plea to the single distribution count under Fed.R.Crim.P. 11(a)(2), reserving the right to appeal the denial of his motion to suppress. The court dismissed the conspiracy count pursuant to Price’s plea. Pierce went to trial where he was convicted on both counts. Both defendants filed separate briefs in which they each challenge the district court’s denial of their motions to suppress. II. A Consent to Search Pierce and Price both object to the district court’s determination that Pierce voluntarily consented to the warrantless search. A warrantless search conducted pursuant to a valid consent is permissible under the Fourth Amendment. Schneckcloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). Whether a consent to search is voluntary, or the product of duress or coercion, is a question of fact to be determined from the totality of the circumstances. Id. at 227, 93 S.Ct. at 2047-48; see also United States v. Rice, 995 F.2d 719, 723 (7th Cir.1993). Because it is a question of fact, a finding of voluntariness will not be reversed absent clear error. Rice, 995 F.2d at 724. As a preliminary matter, we are at a loss to understand why the government did not contest Price’s standing to challenge the voluntariness of Pierce’s consent. In attacking the voluntariness of Pierce’s consent, Price is attempting to suppress evidence gained as a consequence of an alleged violation of someone else’s (Pierce’s) Fourth Amendment rights. Yet we know from Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), that the rights guaranteed by the Fourth Amendment are personal, and may not be asserted vicariously. Rather, they must be championed by the one whose" } ]

[ { "docid": "9559304", "title": "", "text": "lead to the conclusion that consent to search was coerced). The only facts arguably relevant to the voluntariness of Baker’s consent were that Baker was sitting in Brophy’s patrol car and that Brophy did not give Miranda warnings or tell Baker of his right to refuse to consent to the search. Because Baker was not under arrest at this point, there was no need to give him Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). Moreover, failure to inform a suspect of his right to refuse to consent to a search does not invalidate a consent that is voluntary. United States v. Price, 54 F.3d 342, 347 (7th. Cir.1995) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854 (1973)). Based on facts almost identical to these, we affirmed the voluntariness of a consent in Quinones-Sandoval, 943 F.2d at 774-75. The district court’s determination that Baker voluntarily consented to the search is not clearly erroneous. Finally, Baker contends that Broph/s search exceeded the scope of his consent. Brophy found the gun and crack under the driver’s seat of Baker’s car; the crack was in a black, nylon bag. Baker’s consent, however, did not contain any explicit limitations. Even after Brophy identified the intended objects of his search, Baker gave an unqualified consent to search. Consent of this sort includes a consent to search containers within the car that might contain drugs. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). Moreover, Baker never explains what the limits of his consent were or how Brophy exceeded them. Thus, there is no merit to this claim. In sum, Baker’s Fourth Amendment claims are baseless. The district court was not clearly erroneous in denying the motion to suppress the evidence found in his car. That said, we arrive at the Bailey issue. The weapon found in Baker’s car was a loaded 10 millimeter semi-automatic handgun. Its hammer was cocked, so that a slight touch on the trigger would set it off. It was" }, { "docid": "22417098", "title": "", "text": "In such cases, although the specific facts observed do not in any rigorous sense constitute proof that the officer or others are in danger, the standard necessary to establish reasonable suspicion “is considerably less than proof ... by a preponderance of the evidence.” Sokolow, 109 S.Ct. at 1585. Because we believe that Cieplensky had reasonable suspicion to fear that Kikumura could be armed and dangerous, we conclude that the pat-down search for weapons was constitutional. Finally, Kikumura contends that the search of the passenger compartment of his car, during which Cieplensky discovered the bombs, was unconstitutional. A search undertaken pursuant to voluntary consent is not unconstitutional, however, and the district court concluded that Kikumura’s consent was voluntary. That determination is a finding of fact, see Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973), and, as such, is subject only to clearly erroneous review. See, e.g., United States v. Kelly, 708 F.2d 121, 126 (3d Cir.), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983); see also id. at 127 (Gibbons, J., dissenting). We cannot conclude that the finding of voluntariness was clearly erroneous. In Schneckloth, the Court instructed that the voluntariness of a consent to search must be determined by reference to “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” 412 U.S. at 226, 93 S.Ct. at 2047. In reviewing the circumstances here, we are struck by one fact of almost overwhelming significance: Kikumura did not merely assent to a search that was first requested by Cieplensky; he suggested it. When Cie-plensky asked Kikumura what the box in his car contained, Kikumura responded, “Souvenirs. Go ahead, check it out.” None of the surrounding circumstances vitiate the obvious inference that Kikumura, hoping that Cieplensky would not call his bluff, volunteered to have his car searched. To be sure, Kikumura had been stopped and frisked. However, this stop and frisk, like the stop described in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), was effected “by only" }, { "docid": "4118601", "title": "", "text": "drugs. The parties agree that after Eisenbarger issued Stribling the warning he told her that she could depart, but asked her if she would answer a few more questions. “[T]he law is well established that if the officer asks rather than commands, the person accosted is not seized, and so the protections of the Fourth Amendment do not attach.” United States v. DeBerry, 76 F.3d 884, 885 (7th Cir.1996). Stribling was asked to remain and she chose to do so. See United States v. Rivera, 906 F.2d 319 (7th Cir.1990); cf. United States v. Finke, 85 F.3d 1275 (7th Cir.1996) (defendant would not feel free to leave after officer informed him that he was calling a canine unit). Stribling next argues that the circumstances surrounding her consent indicate submission to authority rather than volun-tariness. “Consent lifts the warrant requirement of the fourth amendment but only if the consent to search is voluntary.” United States v. Quinones-Sandoval, 943 F.2d 771, 774 (7th Cir.1991). “[T]he question whether a consent to search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973). Under the factors enunciated in United States v. LaGrone, 43 F.3d 332, 334 (7th Cir.1994) and United States v. Kozinski 16 F.3d 795, 810 (7th Cir.1994), neither the district court’s finding that Stri-bling’s consent was voluntary, nor its finding that Stribling consented to a search of “any compartment” of the car, can be considered clearly erroneous. See Quinones-Sandoval, 943 F.2d at 774-75. Because Stribling voluntarily consented to the search of the car, neither probable cause nor exigent circumstances was necessary for Eisenbarger to search the trunk legally. Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045. Further, as the district court noted, Stribling was present during the search; she could (and should) have protested at the time if she believed Eisenbarger exceeded the scope of her consent, as it was her burden to limit that scope." }, { "docid": "23060588", "title": "", "text": "Raymond Baker, answered, holding a gun cleaning rod in his hand. When the officer sought entrance to search for Smith, Baker replied, “Okay, but I only want one of you to come inside.” A federal agent replied that the condition was “unacceptable,” after which Baker unlocked the door and permitted the agents to enter, saying, “Don’t get excited, I am cleaning my guns.” The rear building later turned out to be a separate residence owned by Baker. Smith was found in a back bedroom and was arrested. The officers seized four firearms that were within Smith’s immediate reach, and eighteen other firearms found in various parts of the house during the search for Smith. Smith was convicted for possession of the four firearms found near him during the arrest. A. Search and Seizure Smith urges that the firearms were seized in violation of the Fourth Amendment because the officers conducted an invalid warrantless search. Specifically, Smith contends that although Baker consented to a search, the consent was qualified to the extent of allowing in only one officer, and the limits of that consent were exceeded when other officers entered. A specific exception to the Fourth Amendment’s warrant and probable cause requirements is that a search conducted pursuant to a valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973)); United States v. Henry, 615 F.2d 1223, 1230 (9th Cir.1980). As owner and permanent resident of the house, Baker clearly had authority to consent to a search of its contents. United States v. Dubrofsky, 581 F.2d 208, 212 (9th Cir.1978). Smith maintains, however, that Baker’s consent was merely a qualified one and that the search exceeded the scope of the consent because more than one officer entered the house. While it is clear that the government must conform' to limitations placed upon the right granted to search, Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir.1977); United States v. Griffin, 530 F.2d 739, 744 (7th Cir.1976), Smith has cited no authority, and we have found none, in which a consent" }, { "docid": "9559300", "title": "", "text": "States v. D'Antoni, 856 F.2d 975, 978-79 (7th Cir.1988), cert. denied, — U.S. -, 116 S.Ct. 429, 133 L.Ed.2d 345 (1995) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511- 12, 84 L.Ed.2d 518 (1985)). Accordingly, in our analysis of Baker’s claims, we consider only Brophy’s account of the facts. According to Brophy, his radar clocked Baker’s Chevy going 77 miles per hour in a 65 mile per hour zone on Interstate Highway 69 north of Fort Wayne, Indiana. After the car was pulled over for speeding, Brophy approached it with his hand on his gun. Brophy saw Baker reach below the driver’s seat. Brophy asked Baker to get out of his car and sit in the squad car. Baker did as requested. Because Brophy had both probable cause for the stop and the authority to act, the stop was valid. Willis, 61 F.3d at 530. Once Brophy stopped Baker, the trooper could legitimately ask him to step out of his car, even without any particularized suspicion that Baker possessed a weapon. Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 331-32, 54 L.Ed.2d 331 (1977). Finally, the fact that Brophy asked Baker to sit in his patrol car “does not by itself distinguish [Baker’s] circumstances from that of any other motorist who has been pulled over for a minor traffic violation.” United States v. Quinones-Sandoval, 943 F.2d 771, 775 (7th Cir.1991). Baker at this point was not under arrest. Once in his patrol car, Brophy asked Baker a few questions, to which Baker gave inconsistent or suspicious answers: Baker claimed to be going to visit a friend whose name he did not know at a lake of whose location he was uncertain. Brophy then asked if he could search Baker’s car. Baker replied, “I don’t care — you can if you want to.” Brophy asked if there were any drugs or weapons in the car; Baker denied that there were. Brophy again asked for and received permission to search Baker’s car. Before leaving his patrol car to conduct the search, Brophy handcuffed" }, { "docid": "9559298", "title": "", "text": "TERENCE T. EVANS, Circuit Judge. Nikolaos Baker’s conviction, on charges of possessing crack cocaine with intent to distribute and using or carrying a firearm in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1), and this appeal straddle the decision last December by the United States Supreme Court in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Because firearm charges under § 924(c) are a staple of federal court jurisprudence, and Bailey significantly curtailed the scope of the law, many cases, and Baker’s is a good example, present interesting issues. Baker was sentenced to 7 years on the crack cocaine charge and an additional 5 years, consecutive, on the § 924(c) count. Before we arrive at Baker’s significant issue regarding Bailey, we need to address an easier issue — his claim that the evidence against him should have been suppressed. Baker was arrested after Indiana State Trooper Robert Brophy found 27 grams of crack and a handgun in Baker’s ear following a routine traffic stop. Baker raises four related Fourth Amendment claims regarding the discovery and seizure of the drugs and gun. First, he contends they were seized after he was arrested without probable cause. Next, he says he never consented to Brophy’s search of his car. Third, he claims he was coerced into giving whatever consent he gave, and last, he says the search exceeded the scope of his consent even if it was given. For these reasons, he argues that the district court erroneously denied his motion to suppress evidence. We review the district court’s denial of a motion to suppress evidence for clear error and defer to its factual determinations. United States v. Willis, 61 F.3d 526, 529 (7th Cir.1995), petition for cert. filed Oct. 23,1995. Baker’s Fourth Amendment claims rest on his version of the facts. The district court, however, determined after a suppression hearing that Baker’s version was not credible. Instead, the court chose to credit Brophy’s view of what happened. That determination — to credit Brophy’s version rather than Baker’s — cannot be clearly erroneous. United" }, { "docid": "3155285", "title": "", "text": "on Baker’s consent to the search. The search was not invalid under the Fourth Amendment. Petitioner’s disclaimer of any interest in the Waukegan room made it reasonable for the police to rely on the consents of Baker and the landlady. We need not decide whether petitioner’s disclaimer would have been a sufficient consent in the absence of any other justification for search, or a permanent waiver of his Fourth Amendment rights. We hold only that the police were entitled to take petitioner at his word and proceed to seek consents from persons who would have rights to the room if petitioner did not. Petitioner suggests that Baker’s consent was not proven to have been voluntary; we need not decide that issue, for the landlady’s consent was sufficient. Since Baker had checked out of the room nine days earlier, and petitioner disclaimed any interest in the room, it was as if there were no tenants, and the right to consent reverted to the landlady. Cf. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828. It is not clear whether petitioner’s disclaimer of interest in the Waukegan room should be considered as a consent or a statement in response to interrogation, but neither characterization renders the evidence found in the room inadmissible. It was unnecessary to advise petitioner that he could refuse consent to search before asking for his consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. We agree with the Ninth Circuit that Schneckloth controls even when, as here, the suspect was in custody when consent was sought. United States v. Heimforth, 493 F.2d 970 (1974). Before denying his right to possession of the room, petitioner had been given the usual warnings later required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, except that he was not told of his right to appointed counsel if indigent. This case is therefore quite like Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182. We" }, { "docid": "6966519", "title": "", "text": "Woody, 55 F.3d 1257, 1268 (7th Cir.1995); United States v. Garcia, 897 F.2d 1413, 1419 (7th Cir.1990). Because the stop was an objectively reasonable one under Trigg, and one the trooper was empowered to make, we need not consider Mr. Willis’ subjectively-based submission that the basis for the stop was pretextual. 2. The Voluntariness of Mr. Willis’ Consent to Search Mr. Willis next submits that his verbal consent to the search of his truck and trailer was not voluntary. According to the defendant, Trooper Hartman arranged the consent to search form under the warning ticket on his clipboard so that its signature line was at the bottom. The officer then told the defendant, as he handed him the clipboard, that he was giving him just a warning, and that he should sign it at the bottom. Mr. Willis mistakenly signed the consent form rather than the warning ticket. The defendant further points out that the officer did not advise him of his mistake until he was seeking verbal consent to search the vehicles, and did not tell him that he could withdraw the written consent. Under these circumstances, contends Mr. Willis, the trooper’s use of the written consent while seeking verbal consent for the search was improper and caused the verbal consent not to be a product of the defendant’s free will. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court of the United States held that whether a consent to search was voluntary “is a question of fact to be determined from the totality of all the circumstances.” Id. at 227, 93 S.Ct. at 2048. We review the district court’s factual determination for clear error. United States v. Price, 54 F.3d 342, 345 (7th Cir.1995). If the consent to search is voluntary, that consent removes the Fourth Amendment’s warrant requirement. Quinones-Sandoval, 943 F.2d at 774. The burden of proving voluntariness, however, is on the government. United States v. Taylor, 31 F.3d 459, 463 (7th Cir.1994) (citing Schneckloth, 412 U.S. at 222, 93 5.Ct. at 2045). The district court, at the suppression" }, { "docid": "9559299", "title": "", "text": "four related Fourth Amendment claims regarding the discovery and seizure of the drugs and gun. First, he contends they were seized after he was arrested without probable cause. Next, he says he never consented to Brophy’s search of his car. Third, he claims he was coerced into giving whatever consent he gave, and last, he says the search exceeded the scope of his consent even if it was given. For these reasons, he argues that the district court erroneously denied his motion to suppress evidence. We review the district court’s denial of a motion to suppress evidence for clear error and defer to its factual determinations. United States v. Willis, 61 F.3d 526, 529 (7th Cir.1995), petition for cert. filed Oct. 23,1995. Baker’s Fourth Amendment claims rest on his version of the facts. The district court, however, determined after a suppression hearing that Baker’s version was not credible. Instead, the court chose to credit Brophy’s view of what happened. That determination — to credit Brophy’s version rather than Baker’s — cannot be clearly erroneous. United States v. D'Antoni, 856 F.2d 975, 978-79 (7th Cir.1988), cert. denied, — U.S. -, 116 S.Ct. 429, 133 L.Ed.2d 345 (1995) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511- 12, 84 L.Ed.2d 518 (1985)). Accordingly, in our analysis of Baker’s claims, we consider only Brophy’s account of the facts. According to Brophy, his radar clocked Baker’s Chevy going 77 miles per hour in a 65 mile per hour zone on Interstate Highway 69 north of Fort Wayne, Indiana. After the car was pulled over for speeding, Brophy approached it with his hand on his gun. Brophy saw Baker reach below the driver’s seat. Brophy asked Baker to get out of his car and sit in the squad car. Baker did as requested. Because Brophy had both probable cause for the stop and the authority to act, the stop was valid. Willis, 61 F.3d at 530. Once Brophy stopped Baker, the trooper could legitimately ask him to step out of his car, even without any particularized suspicion that Baker" }, { "docid": "23132064", "title": "", "text": "us that that Court does not believe that the form authorizes suspicionless searches. Rather, the analysis engaged in, which focuses on the reasonableness of the search, would be unnecessary if the form authorized a search not otherwise permitted under the Fourth Amendment. See, e.g., Williams, 692 A.2d at 1036 (“A search will be deemed reasonable if the totality of the evidence demonstrates: (1) that the parole officer has a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer’s duty.”) (citations omitted). Accordingly, we conclude that Pennsylvania would construe the standard form as requiring reasonable suspicion to conduct a search, and thus that the consent form that Baker signed did not authorize suspi-cionless searches of his person, property, or residence. Y. For the foregoing reasons, we conclude that the search of the trunk was not founded on reasonable suspicion, and that the consent form did not authorize a suspicion-less search thereof. The fruits of the search, including the evidence found in the search of Baker’s house, must therefore be suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The order of the District Court denying Baker’s motion to suppress will be reversed and the case remanded to the District Court for further action consistent with this opinion. . In a letter brief filed after the first stage of this appeal, the government advanced the following theoiy of consent for the first time: the defendant consented to the search and seizure of his bag from the trunk of the car when he identified the bag as his and instructed the parole agent in how to open the trunk. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (consent to search must be voluntary, but the government is not obliged to prove that the suspect was warned of any right to refuse consent). Appellee's Letter Br., Nov. 27, 1998. As the government did not make this argument in the District Court and did not renew it in its" }, { "docid": "22919770", "title": "", "text": "we must consider Perez’s consent in light of the factors described in United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988). Nothing suggests that the officers exerted any overt coercion on Perez to consent, or told him that they could secure a warrant if he refused. Id. Nor was the situation inherently coercive: Perez was not under arrest or physically detained at the time, and the officers did not have their guns drawn. Id. Perez was briefly detained on a public highway, a' setting held to actually discourage coercion. Berkemer v. McCarty, 468 U.S. 420, 438, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984). Perez signed a written consent form which specifically advised him, in Spanish, of his right to refuse consent. The officers did not give a Miranda warning, but it was not required, since Perez was not under arrest at the time. Schneckloth v. Bustamonte, 412 U.S. 218, 231-32, 93 S.Ct. 2041, 2049-50, 36 L.Ed.2d 854 (1973) (failure to give Miranda warning does not render consent invalid if defendant is not subject of custodial interrogation). Viewing the totality of the circumstances, Castillo, 866 F.2d at 1082, we conclude that Perez’s consent was voluntary. See Gutierrez-Mederos, 965 F.2d at 802-03 (finding consent to be voluntary under similar circumstances). IV “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Cannon, 29 F.3d at 477 (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991)). Perez claims that “[n]o reasonable person ... could have foreseen that his consent opened the door to a trained K-9 unit’s examination of their entire automobile.” Blue Brief at 19. Whether a search went beyond the scope of a suspect’s consent is a determination reviewed for clear error.. United States v. Huffhines, 967 F.2d 314, 319 (9th Cir.1992). We conclude that the search was not more intrusive than Perez had envisioned when giving his consent, but rather simply more effective. Mickey the dog" }, { "docid": "23058510", "title": "", "text": "with the owner’s permission provides Carlos with a subjective expectation of privacy that is reasonable and legitimate. Therefore Carlos has standing to assert his fourth amendment rights. We turn to the issue of whether the search was proper. B. Search of the Truck Initially, Carlos asserts that the troopers did not have reasonable suspicion or probable cause to stop the truck. He claims the stop was merely a pretext to conduct a warrantless evidentiary search of the truck based solely on the trooper’s observation of two Hispanic males traveling north with Texas license plates. While such conduct, if unsupported by any suspicion other than race, would clearly raise serious fourth amendment concerns, this is not the case here. Trooper Baker pulled the defendants over for speeding. It is uncontestable that traveling at any speed over the posted speed limit is a traffic offense and a trooper is justified in stopping a vehicle for the offense. Therefore, we must conclude that the stop of Carlos’ vehicle was proper. Carlos also claims that the search was improper because he did not voluntarily consent and, in any event, the scope of the se.arch exceeded any purported consent. The trial court, after hearing the evidence, held the search was conducted pursuant to valid consent, and we agree. In Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973), the Supreme Court noted that it is “well-settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” The government bears the burden of proving, by a preponderance of the evidence, that the consent was freely and voluntarily given. The voluntariness of a consent is a question of fact to be determined from the totality of the circumstances. United States v. Matlock, 415 U.S. 164, 171 n. 7, 177, 94 S.Ct. 988, 993 n. 7, 996, 39 L.Ed.2d 242 (1974); Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48. The fact that the defendant was not told that he had a right to refuse to" }, { "docid": "23058512", "title": "", "text": "give consent is not, in and of itself, sufficient to invalidate the consent. Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2047-48. In the present case, the trial court found that Carlos’ consent was given freely and voluntarily when viewed under the totality of the circumstances. Carlos contends that his consent was not freely given because he understands and speaks little English. The district court, however, concluded his ability to speak and understand English was clearly proven as he conversed with different troopers for considerable periods of time and translated the trooper’s questions to Jose at the time of the stop. Based on our review of the evidence in the record we find that the district court’s determination that Carlos voluntarily consented to the search was not clearly erroneous. Additionally, we note that “[a] driver may consent to a search of all areas of a vehicle to which he has joint access and control.” United States v. Morales, 861 F.2d 396, 401 (3rd Cir.1988). Because Carlos’ consent was sufficient to search the entire truck, we need not reach the question of Jose’s consent. The only issue remaining for us is whether the search conducted by Baker was valid in light of the consent given. Initially, we note that the scope of a consent search is limited by the breadth of the actual consent. United States v. Gay, 774 F.2d 368, 377 (10th Cir.1985). Baker’s request to search was directly linked to his inquiry regarding the presence of drugs or weapons in the truck. Without more, police can only search areas these items may reasonably be expected to be found. The opening of door panels is not normally included in this set of areas to be searched. Such a search is inherently invasive, and extends beyond the consent given under these circumstances. In this case, however, we believe the dismantling of the doors was justified by probable cause. While conducting the consensual visual search, Baker’s suspicions were aroused by the lack of door handles and the mismatched and ill-fitting screws on the door panels. Investigating more closely, Baker spotted packages inside" }, { "docid": "9559303", "title": "", "text": "at age 16, he was placed on probation for possession of a controlled substance; he was twice arrested at age 17 for disorderly conduct; he had five tickets for minor traffic violations. We don’t believe Baker was either so young or inexperienced in confrontations with police that he did not have the ability to voluntarily consent to the search. The district court’s finding on this point was not clearly erroneous. Baker next argues that because Brophy had his hand on his gun, the consent was coerced. Although Brophy initially approached Baker’s car with his hand on his gun-not an unreasonable thing to do at night — he never drew it out of his holster. The district court discredited Baker’s passenger’s testimony that Brophy threatened them, and even by that account, the alleged threat occurred after Baker consented to the search. Thus, there is no basis for Baker’s claim of physical coercion. See, e.g., United States v. Lechuga, 925 F.2d 1035, 1042 (7th. Cir.1991) (holding that the mere fact that an officer is armed does not lead to the conclusion that consent to search was coerced). The only facts arguably relevant to the voluntariness of Baker’s consent were that Baker was sitting in Brophy’s patrol car and that Brophy did not give Miranda warnings or tell Baker of his right to refuse to consent to the search. Because Baker was not under arrest at this point, there was no need to give him Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). Moreover, failure to inform a suspect of his right to refuse to consent to a search does not invalidate a consent that is voluntary. United States v. Price, 54 F.3d 342, 347 (7th. Cir.1995) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854 (1973)). Based on facts almost identical to these, we affirmed the voluntariness of a consent in Quinones-Sandoval, 943 F.2d at 774-75. The district court’s determination that Baker voluntarily consented to the search is not clearly erroneous. Finally, Baker contends that Broph/s search" }, { "docid": "9559301", "title": "", "text": "possessed a weapon. Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 331-32, 54 L.Ed.2d 331 (1977). Finally, the fact that Brophy asked Baker to sit in his patrol car “does not by itself distinguish [Baker’s] circumstances from that of any other motorist who has been pulled over for a minor traffic violation.” United States v. Quinones-Sandoval, 943 F.2d 771, 775 (7th Cir.1991). Baker at this point was not under arrest. Once in his patrol car, Brophy asked Baker a few questions, to which Baker gave inconsistent or suspicious answers: Baker claimed to be going to visit a friend whose name he did not know at a lake of whose location he was uncertain. Brophy then asked if he could search Baker’s car. Baker replied, “I don’t care — you can if you want to.” Brophy asked if there were any drugs or weapons in the car; Baker denied that there were. Brophy again asked for and received permission to search Baker’s car. Before leaving his patrol car to conduct the search, Brophy handcuffed Baker. Brophy explained that he did this for his own protection. Baker’s claim that he did not consent or that his consent was ambiguous is meritless. His response to the trooper’s request to search his car was clear and unequivocal. Moreover, even after Brophy questioned him about the presence of drugs or weapons in his car, Baker again consented to the search. Thus, the district court was not clearly erroneous in concluding that Baker consented to the search. Baker nonetheless maintains that his consent was involuntary. His argument on this score, however, is doomed because it rests on facts discredited by the court at the suppression hearing. As we said earlier, we defer to a district court’s factual determinations, particularly on credibility, and so we need not consider testimony discredited by the trial court. Baker emphasizes his age and inexperience in arguing that his consent was involuntary. Baker was 21 years old at the time of the search. According to his PSR, he had several minor run-ins with the law prior to the present offense:" }, { "docid": "22919769", "title": "", "text": "to use the only four English words Perez claimed to know. We agree, and note in addition that Perez fails to explain how, if he knew so little English, he could have responded to Owens’s prior questions about where he was coming from and heading to, about who the van’s owner was. More-r, Owens’ testimony that the officers first ired consent and then searched was eor-jrated by the testimony of officer Carl-Mickey’s handler. The magistrate was clearly erroneous in finding that Perez gave his consent to the search. We are left with the question whether the consent was voluntary. The magistrate judge found that, “[u]nder the factual scenario described by Owens, it is clear that Perez freely and voluntarily consented to the search of his van.” He noted, [Owens] had already returned the driver’s license and registration to Perez, had finished verbally admonishing him for his unsafe driving, was in possession of nothing belonging to Perez, and spoke to Perez in a quiet, non-aggressive voice. ER at 10 n. 8. In reviewing the magistrate’s determination, we must consider Perez’s consent in light of the factors described in United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1988). Nothing suggests that the officers exerted any overt coercion on Perez to consent, or told him that they could secure a warrant if he refused. Id. Nor was the situation inherently coercive: Perez was not under arrest or physically detained at the time, and the officers did not have their guns drawn. Id. Perez was briefly detained on a public highway, a' setting held to actually discourage coercion. Berkemer v. McCarty, 468 U.S. 420, 438, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984). Perez signed a written consent form which specifically advised him, in Spanish, of his right to refuse consent. The officers did not give a Miranda warning, but it was not required, since Perez was not under arrest at the time. Schneckloth v. Bustamonte, 412 U.S. 218, 231-32, 93 S.Ct. 2041, 2049-50, 36 L.Ed.2d 854 (1973) (failure to give Miranda warning does not render consent invalid if defendant is not subject" }, { "docid": "9559302", "title": "", "text": "Baker. Brophy explained that he did this for his own protection. Baker’s claim that he did not consent or that his consent was ambiguous is meritless. His response to the trooper’s request to search his car was clear and unequivocal. Moreover, even after Brophy questioned him about the presence of drugs or weapons in his car, Baker again consented to the search. Thus, the district court was not clearly erroneous in concluding that Baker consented to the search. Baker nonetheless maintains that his consent was involuntary. His argument on this score, however, is doomed because it rests on facts discredited by the court at the suppression hearing. As we said earlier, we defer to a district court’s factual determinations, particularly on credibility, and so we need not consider testimony discredited by the trial court. Baker emphasizes his age and inexperience in arguing that his consent was involuntary. Baker was 21 years old at the time of the search. According to his PSR, he had several minor run-ins with the law prior to the present offense: at age 16, he was placed on probation for possession of a controlled substance; he was twice arrested at age 17 for disorderly conduct; he had five tickets for minor traffic violations. We don’t believe Baker was either so young or inexperienced in confrontations with police that he did not have the ability to voluntarily consent to the search. The district court’s finding on this point was not clearly erroneous. Baker next argues that because Brophy had his hand on his gun, the consent was coerced. Although Brophy initially approached Baker’s car with his hand on his gun-not an unreasonable thing to do at night — he never drew it out of his holster. The district court discredited Baker’s passenger’s testimony that Brophy threatened them, and even by that account, the alleged threat occurred after Baker consented to the search. Thus, there is no basis for Baker’s claim of physical coercion. See, e.g., United States v. Lechuga, 925 F.2d 1035, 1042 (7th. Cir.1991) (holding that the mere fact that an officer is armed does not" }, { "docid": "2388962", "title": "", "text": "of June 3, 1971. Four agents were dispatched to Baker’s apartment, arriving at 7 a. m. No search warrant had been sought. Miss Baker remembered that the agents were armed with shotguns. The agents also testified they were armed, but could not recall what weapons they had, if any, in addition to sidearms. After being admitted to the apartment, the agents asked Baker if she knew Sam Boston. Baker responded that she did. The agents testified that they told her Boston had been arrested for bank robbery and asked her if they could search the apartment. She consented orally, they said, and signed a consent to search form. Miss Baker, who was alone except for her three young children and was clad only in a bathrobe, testified later that she was not aware that she was signing a consent to search form. She said the agents had told her that they could “call somebody and have them give” permission to search the apartment. She did, however, identify the signature on the consent to search form as being hers. As stated above, the search uncovered suitcases containing more than $80,000, including $800 in bait money, and other incriminating evidence. The results of the search were relayed to Boston, who then admitted his participation in the bank robbery. Boston argues on appeal that the items seized at the apartment should not have been admitted into evidence because Baker “did not intelligently, knowingly and intentionally consent to a search of the apartment.” The question thus presented is one “of fact to be determined from the totality of all the circumstances.” Schneckloth v. Busta-monte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The Government’s burden was to show by a preponderance of the evidence that Baker’s alleged consent had been “freely and voluntarily given,” United States v. Fernandez, 456 F.2d 638, 640 (2d Cir. 1972), quoting Bumper v. North Carolina, 391 U.S. 543, 549, 88 5. Ct. 1788, 20 L.Ed.2d 797 (1968). There is no claim of misapprehension as to this in the trial court. Our review, then, is of" }, { "docid": "23132065", "title": "", "text": "of Baker’s house, must therefore be suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The order of the District Court denying Baker’s motion to suppress will be reversed and the case remanded to the District Court for further action consistent with this opinion. . In a letter brief filed after the first stage of this appeal, the government advanced the following theoiy of consent for the first time: the defendant consented to the search and seizure of his bag from the trunk of the car when he identified the bag as his and instructed the parole agent in how to open the trunk. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (consent to search must be voluntary, but the government is not obliged to prove that the suspect was warned of any right to refuse consent). Appellee's Letter Br., Nov. 27, 1998. As the government did not make this argument in the District Court and did not renew it in its brief following remand, and as Baker timely objected that the argument had been waived in his response to the government’s letter brief, see Appellant's Response to Appellee’s Letter Br., Dec. 1, 1998, we will not consider this argument on appeal. . In the first stage of the appeal, Baker also claimed that the District Court erred in \"failing to recognize its authority to depart from the career offender status on the grounds that the appellant’s criminal history status seriously overrepresented his past conduct and significantly differed from the heartland.” On remand, the District Court clarified that it was fully aware of its authority to depart on this ground, and Baker makes no argument on this issue at this time. . The District Court found that, before the parole agent searched the trunk, he knew that \"the defendant could not produce documents demonstrating that he owned the car.” However, Agent Rnorr testified that the relevant portions of the conversation regarding the ownership of the car occurred after the agents searched the trunk. See App. at 28a" }, { "docid": "9559305", "title": "", "text": "exceeded the scope of his consent. Brophy found the gun and crack under the driver’s seat of Baker’s car; the crack was in a black, nylon bag. Baker’s consent, however, did not contain any explicit limitations. Even after Brophy identified the intended objects of his search, Baker gave an unqualified consent to search. Consent of this sort includes a consent to search containers within the car that might contain drugs. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). Moreover, Baker never explains what the limits of his consent were or how Brophy exceeded them. Thus, there is no merit to this claim. In sum, Baker’s Fourth Amendment claims are baseless. The district court was not clearly erroneous in denying the motion to suppress the evidence found in his car. That said, we arrive at the Bailey issue. The weapon found in Baker’s car was a loaded 10 millimeter semi-automatic handgun. Its hammer was cocked, so that a slight touch on the trigger would set it off. It was resting on top of a nylon bag containing 27 grams of crack cocaine. Both were under the seat Baker was occupying when he drove the car. Baker argues that there was insufficient evidence to convict him of the firearm charge under 28 U.S.C. § 924(c)(1). Baker claims that the weapon’s placement on top of a bag containing 27 grams of crack underneath the driver’s seat of his car was “a mere accident or coincidence,” and was unrelated to his drug trafficking conviction. Baker further contends that because there were two passengers in the car along with him, there was insufficient evidence upon which the jury could have found that the gun belonged to him. In a challenge to a conviction based on a claim of sufficiency of the evidence, we review evidence presented at trial in the light most favorable to the government, and will uphold the conviction if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Taylor, 31 F.3d 459, 464" } ]

[ { "docid": "22700382", "title": "", "text": "new statute of limitation would not bar his suit.” Id., at 193-194. Four other Justices, retroactivity analysis should apply in other contexts, reaffirmed its application to statutes of limitations. The dissenting Justices stated explicitly that it would be “most inequitable to [hold] that [a] plaintiff ha[s] ‘“slept on his rights’” during a period in which neither he nor the defendant could have known the time limitation that applied to the case.” American Trucking, supra, at 220 (Stevens, J., dissenting), quoting Chevron Oil, supra, at 108. After American Trucking, the continued vitality of Chevron Oil with respect to statutes of limitations is — or should be — irrefutable; nothing in James B. Beam Distilling Co. v. Georgia, post, p. 529, alters this fact. The present case is indistinguishable from Chevron Oil and retroactive application should therefore be denied. All three Chevron Oil factors are met. First, in adopting a federal statute of limitations, the Court overrules clearly established Circuit precedent; the Court admits as much. Ante, at 353. Second, the Court explains that “the federal interes[t] in predictability” demands a uniform standard. Ante, at 357. I agree, but surely predictability cannot favor applying retroactively a limitations period that the respondents could not possibly have foreseen. Third, the inequitable results are obvious. After spending 472 years in court and tens of thousands of dollars in attorney’s fees, respondents’ suit is dismissed for failure to comply with a limitations period that did not exist until today. Earlier this Term, the Court observed that “the doctrine of stare decisis serves profoundly important purposes in our legal system.” California v. Acevedo, 500 U. S. 565, 579 (1991). If that is so, it is difficult to understand the Court’s decision today to apply retroactively a brand new statute of limitations. Part IV of the Court’s opinion, without discussing the relevant cases or even acknowledging the issue, declines to follow the precedent established in Chevron Oil, Saint Francis College, and American Trucking, not to mention Wilson and Brinkerhoff-Faris. The Court’s cursory treatment of the retroactivity question cannot be an oversight. The parties briefed the issue in this" } ]

[ { "docid": "8312199", "title": "", "text": "period for private actions brought pursuant to § 10(b). Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). The Court in Lampf required that § 10(b) claims be filed within one year after discovery of the violation and absolutely within three years from date of violation. Id. — U.S. at -, 111 S.Ct. at 2781-82. Because A-plaintiffs filed their claim in the midst of this upheaval concerning the limitations period for § 10(b) claims, a question arises as to what statute of limitations applies to their claim. A-plaintiffs argue that the New York statute of limitations for § 10(b) claims as of February 1990 applies, while the Sovereign defendants contend that the uniform federal statute of limitations announced in Lampf and/or Data Access controls. On the same day that the Court decided Lampf, the Court also decided James Beam Distilling Co. v. Georgia, — U.S. -, -, 111 S.Ct. 2439, 2448, 115 L.Ed.2d 481 (1991), concluding that in the civil context “when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata.” In light of James Beam, it was “evident that the retroactive ruling in Lampf [was] to be applied retroactively to all cases not finally adjudicated on the date when Lampf was decided.” Welch v. Cadre Capital, 946 F.2d 185, 187 (2d Cir.1991) (“Welch II’’). In an effort to limit the retroactive application of Lampf, Congress amended the Securities Exchange Act of 1934 on December 19, 1991 by adding after section 27, 15 U.S.C. § 78aa, a new section 27A, 15 U.S.C. § 78aa-I. Under § 27A, Lampf applied only to cases commenced after the day Lampf was decided, June 19, 1991. See Securities Exchange Act of 1934, § 27A, 15 U.S.C. § 78aa-1. Section 27A states: (a) EFFECT ON PENDING CAUSES OF ACTION.—The limitations period for any private civil action implied under 10(b) of this Act that was commenced on or before June 19, 1991, shall be the" }, { "docid": "10546488", "title": "", "text": "JON O. NEWMAN, Circuit Judge: On remand from the Supreme Court, we reconsider our prior ruling, Welch v. Cadre Capital, 923 F.2d 989 (2d Cir.1991) (“Welch I”), which had rejected retroactive application of the ruling in Ceres Partners v. GEL Associates, 918 F.2d 349 (2d Cir.1990), adopting a uniform federal statute of limitations for actions brought under section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) (1988). The Supreme Court remanded Welch I for reconsideration in light of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (“Lampf”), and James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (“Jim Beam ”). Northwest Savings Bank, PaSA v. Welch, — U.S. -, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991). In Lampf, the Supreme Court adopted the same one year/three-year statute of limitations for section 10(b) actions that we had adopted in Ceres Partners. Significantly, the Court gave retroactive application to the new rule, applying it to the litigation in which the new rule was announced. Lampf, 111 S.Ct. at 2782-83. This retroactive application, undertaken without any discussion of the retroactivity issue, was made over a dissenting opinion that pointed out that the Court had previously declined to apply new statute of limitations rules to the litigation in which the new rule was announced. Id. at 2785, 2786-87 (O’Connor, J., with whom Kennedy, J., joins, dissenting) (citing American Trucking Associations, Inc. v. Smith, — U.S. -, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990), Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), and Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)). It is arguable that Lampf applied the new limitations rule retroactively to the litigation in which the rule was announced to avoid Article III concerns about advisory opinions, without implying that the new rule applies retroactively to all other lawsuits still pending on direct review. That argument, however, is foreclosed by the decision in Jim Beam. The" }, { "docid": "12264099", "title": "", "text": "were not informed by Defendants of the potential effect of the Niagara Mohawk decision on the sale and leaseback transaction; (2) Defendants Tepco, Catalyst and Century made false representations of material facts related to the transaction; and (3) San Diego intended to bring a regulatory challenge based on Niagara Mohawk but conspired with the other defendants not to bring its challenge until after the sale and leaseback transaction closed on December 31, 1986. DISCUSSION I. FEDERAL SECURITIES CLAIMS The parties make essentially the same arguments made in the related Philip Morris case. In that case, this Court dismissed the Plaintiff’s federal securities claims as time-barred following the United States Supreme Court’s decisions in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. —, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (upholding the one year/three year statute of limitations for § 10(b) and Rule 10b-5 claims), and James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (concerning retroactive application of new rules of decision in civil cases), and the Second Circuit’s decision in Welch v. Cadre Capital, 946 F.2d 185 (2d Cir.1991) (holding that one year/three year limitations period by the Supreme Court in Lampf applies retroactively to all cases pending on direct review). Philip Morris and the present case arise from the same set of facts, are based on almost the same allegations, and involve the same attorneys. Accordingly, for the reasons stated in Philip Morris, supra, the federal securities claims in this action are dismissed. In Philip Morris, the absence of complete diversity between all plaintiffs and all defendants prevented this Court from accepting jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332. Here, however, there is complete diversity of citizenship. Accordingly, Defendants’ arguments related to the state law claims will be addressed. II. PERSONAL JURISDICTION OVER SAN DIEGO San Diego argues that this Court lacks personal jurisdiction over it. In a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), the plaintiff has the ultimate burden of establishing jurisdiction over the defendant by a preponderance of the evidence. Marine Midland" }, { "docid": "12566049", "title": "", "text": "the general practice of applying new judicial decisions retroactively.” Welch, 923 F.2d at 991, 993. That Welch was remanded by the Supreme Court for reconsideration in light of Lampf and James B. Beam is a clear indication that the James B. Beam analysis was meant to apply to cases involving retroactively reduced statutes of limitations. Furthermore, in its reconsideration of Welch after remand, the Second Circuit conclusively held, “[T]he retroactive ruling in Lampf is to be applied retroactively to all cases not finally adjudicated on the date when Lampf was decided. Welch v. Cadre Capital, 946 F.2d 185, 187-88 (2d Cir.1991). In light of these recent decisions, the limitations period adopted in Lampf must be applied to the present case. Philip Morris filed this suit on December 28,1990, more than three years after the December 31, 1986 closing of the transaction at issue. Accordingly, Philip Morris’ § 10(b) and Rule 10b-5 claims is not timely and are dismissed. II. Catalyst is an Indispensible Party Having dismissed all of plaintiff’s claims arising under federal statutes, this Court no longer has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Furthermore, because both plaintiff Philip Morris and defendant Catalyst have their principal places of business in New York, Complaint, ¶¶ 2, 4, there is not complete diversity of citizenship between plaintiff and all defendants as required for diversity jurisdiction pursuant to 28 U.S.C. § 1332. Philip Morris requests that this Court dismiss Catalyst from this lawsuit, thus restoring complete diversity and preserving the plaintiff’s filing date as to counts against the remaining defendants. Letter from Plaintiff’s Counsel, June 24,1991. In order to do this, this Court must determine whether such dismissal would comport with the requirements of Fed.R.Civ.P. 19(b). Rule 19(b) provides that: If a person ... cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person thus being regarded as indispensable. In Provident Tradesmens Bank and Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968)," }, { "docid": "4978270", "title": "", "text": "Bernstein v. Antar, 702 F.Supp. 962, 980-81 (E.D.N.Y.1988). In the September 1990 Order the court declined to apply the federal limitations period retroactively because plaintiffs had reasonably relied on the old rule. In re Crazy Eddie Sec. Litig., 747 F.Supp. 850, 857-58 (E.D.N.Y.1990). The court relied on the Supreme Court’s analysis in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-7, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). That case held that a new rule of law should not be applied retroactively if retaining the old rule solely for the purpose of the pending case would not retard the new rule’s purpose and effect and if retroactivity would be inequitable. In November, 1990 the Second Circuit adopted the federal statute of limitations, but because the claims in that case were time-barred under both the new rule and the old rule the court left open all questions of retroactivity. Ceres Partners v. GEL Assoc., 918 F.2d 349, 364 (2d Cir. 1990). In Welch v. Cadre Capital, 923 F.2d 989 (2d Cir.1991) (“Welch I”), vacated and remanded sub nom. Northwest Savings Bank v. Welch, — U.S. -, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991), the Second Circuit relied on a Chevron Oil analysis and declined to apply the new limitations period retroactively to bar the complaint. On June 20,1991 the Supreme Court held that Section 10(b) claims were governed by a federal statute of limitations of one year after the plaintiff discovers the facts constituting the violation, and in no event more than three years after such violation. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). The Court applied the rule to the litigants in the case. On the same day the Supreme Court decided James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), holding that “when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata,” id. at -, 111 S.Ct." }, { "docid": "7990273", "title": "", "text": "FDIC Improvement Act of 1991, Pub.L. 102-242, adds a new section 27A to the ’34 Act, providing that the limitations period for actions pending on June 19, 1991 (the day before the Supreme- Court decided Lampf Pleva) “shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991.” 15 U.S.C. § 78aa-l(a). The rule in this circuit on June 19 was the federal period of one year from discovery (and no more than three years from the sale), established by Short in 1990. As of June 19, 1991, the retroac-tivity of Short was an open issue. The same day it decided Lampf Pleva, the Court issued James B. Beam Distilling Co. v. Georgia, - U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991). Although no more than three Justices signed any of the opinions in that case, the disparate expressions make it clear that six members of the Court concur with Justice Souter’s conclusion that “[ojnce retroactive application is chosen for any assertedly new rule, it is chosen for all others who might seek its prospective application. The applicability of rules of law are not to be switched on and off according to individual hardship”. Ill S.Ct. at 2447-48 (lead opinion). To apply a new rule in the first case is to prescribe its application in all cases. The Court applied the federal period of limitations in Lampf Pleva, over the objection of two Justices who thought the decision should not be made retroactive. Ill S.Ct. at 2785-88 (O’Connor, J., joined by Kennedy, J., dissenting). We applied the federal rule to the parties in Short. Putting Short together with Beam means that the law in effect in this circuit on June 19, 1991, was the federal period of limitations. Accord, Welch v. Cadre Capital, 946 F.2d 185 (2d Cir.1991); Boudreau v. Deloitte, Haskins & Sells, 942 F.2d 497 (8th Cir.1991); Anixter v. Home-Stake Production Co., 947 F.2d 897 (10th Cir.1991) (all holding Lampf Pleva retroactive). Perhaps, however, the new § 27A prevents all consideration of Beam." }, { "docid": "12566047", "title": "", "text": "are subject to the same “one year/three year” limitations period as applies to express causes of action brought by the Securities and Exchange Commission thereunder. Under this one year/ three year period, for a claim to be timely, it must be brought within one year of the discovery of the alleged fraud and no later than three years after the actual occurrence of the alleged fraud. Significantly, the Court applied the new rule to the parties in Lampf, the case announcing the rule. Id., 111 S.Ct. at 2782-83. In James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), the Court ruled that a prior decision applying a tax ruling retroactively to the case announcing the rule, see Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), applied to all cases then pending on direct review. James B. Beam, 111 S.Ct. at 2448. The Court held that it is error not to apply retroactively a rule of federal law “after the case announcing the rule has already done so.” Id. at 2446. While James B. Beam involved a question of constitutionality and the instant case does not, it is clear that the James B. Beam holding on retroactivity in civil cases applies not only to those cases involving constitutional questions, but also to those cases applying retroactively reduced statutes of limitations. The Supreme Court vacated Welch v. Cadre Capital, 923 F.2d 989 (2d Cir.1991), vacated sub nom. Northwest Savings Bank, PaSA v. Welch, — U.S. —, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991), for reconsideration in light of Lampf and James B. Beam. In Welch, the District Court had anticipated the decisions in Ceres Partners v. GEL Associates, 918 F.2d 349 (2d Cir.1990) and Lampf and applied the one year/three year limitations period retroactively. Welch v. Cadre Capital, 735 F.Supp. 467, 476-477 (D.Conn.1989). The Second Circuit reversed, holding that under the three-part test set forth in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the case “[fell] within the exception to" }, { "docid": "11041370", "title": "", "text": "assumed herein. . In granting summary judgment on the federal securities fraud claim, the Court found it unnecessary to consider the Moving Defendants’ argument that that claim is barred by the statute of limitations. The parties had fully briefed the statute of limitations issue following the Second Circuit’s decision in Ceres Partners v. GEL Associates, 918 F.2d 349 (2d Cir.1990), in which that Court held that such a claim must be asserted within one year of its discovery, but in no event more than three years after its accrual (the \"one year/three year period”). Plaintiffs did not contest the Moving Defendants’ argument that, under this rule, the federal securities fraud claim would be barred as untimely. Instead, plaintiffs merely argued that Ceres should not be given retroactive effect. Before this Court issued its May 29 Order, the Second Circuit held that Ceres should not be applied retroactively. Welch v. Cadre Capital, 923 F.2d 989 (2d Cir.1991). On the basis of the Second Circuit’s decision in Welch, the Moving Defendants withdrew the statute of limitations branch of their motion, except as to one plaintiff whose claim the Moving Defendants asserted was barred regardless of Welch. The Supreme Court has subsequently followed Ceres in holding that securities fraud cases brought under § 10(b) and Rule 10b-5 must be filed within the one year/three year period. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S.-, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). However, the Supreme Court also held that that rule must be applied retroactively. James B. Beam Distilling Company v. Georgia, — U.S.-, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991). The Supreme Court therefore vacated Welch. Northwest Savings Bank, PaSA v. Welch, — U.S.-, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991); see also Duke v. Touche Ross & Co., 1991 WL 137493, 1991 U.S.Dist. LEXIS 10106 (S.D.N.Y. July 25, 1991) (Keenan, J.) (dismissing securities fraud claim as time-barred under retroactive application of one year/three year rule). Accordingly, because plaintiffs’ federal securities fraud claim was not filed within the one year/three year period, it must be dismissed on the separate ground of" }, { "docid": "12566046", "title": "", "text": "decision and its potential effect on the sale and leaseback transaction; 2. Defendants Tepco, Catalyst and Century Power made false representations of 'material facts related to the transaction; 3. San Diego intended to bring a regulatory challenge based on Niagara Mohawk but conspired with the other defendants not to bring its challenge until after the transaction at issue here closed on December 31, 1986. Plaintiff alleges that it has been damaged by defendants’ actions, but specifies only that it has lost undesignated tax benefits and suffered undesignated adverse tax consequences. DISCUSSION I. The Statute of Limitations for Philip Morris’ § 10(b) and Rule 10b-5 Claims Has Run Defendants move to dismiss Philip Morris’ § 10(b) and Rule 10b-5 claims as time-barred. After the parties briefed and argued this issue, the United States Supreme Court decided two determinative cases. In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. —, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), the Supreme Court ruled that the judicially implied private rights of action under § 10(b) and Rule 10b-5 are subject to the same “one year/three year” limitations period as applies to express causes of action brought by the Securities and Exchange Commission thereunder. Under this one year/ three year period, for a claim to be timely, it must be brought within one year of the discovery of the alleged fraud and no later than three years after the actual occurrence of the alleged fraud. Significantly, the Court applied the new rule to the parties in Lampf, the case announcing the rule. Id., 111 S.Ct. at 2782-83. In James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), the Court ruled that a prior decision applying a tax ruling retroactively to the case announcing the rule, see Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), applied to all cases then pending on direct review. James B. Beam, 111 S.Ct. at 2448. The Court held that it is error not to apply retroactively a rule of federal law “after the case" }, { "docid": "12566045", "title": "", "text": "for power supplied by Alamito under the Alamito-San Diego Power Sale Agreement, yet failed to disclose this information. Complaint, ¶¶ 22-24, 32-33. In February 1989, San Diego filed with FERC a challenge to the rates it was being charged by Alamito, alleging that it was entitled to a set-off for the capital gain Alamito realized from the sale of its facilities. About the same time, the Arizona Corporation Commission (“ACC”), an Arizona state utility regulatory agency, filed a similar challenge to the rates charged to Tepco by Alamito. In accordance with its obligations under the New Power Sale Agreement, Tepco did not join either challenge. On December 20, 1990, San Diego and Alamito submitted to FERC a proposed settlement of various disputes between them, including the treatment of the gain from the sale of the Springerville facilities. That settlement has been certified by an administrative law judge for FERC approval. Philip Morris filed the instant suit on December 28, 1990. It charged, among other allegations, that: 1. It was not informed of the Niagara Mohawk decision and its potential effect on the sale and leaseback transaction; 2. Defendants Tepco, Catalyst and Century Power made false representations of 'material facts related to the transaction; 3. San Diego intended to bring a regulatory challenge based on Niagara Mohawk but conspired with the other defendants not to bring its challenge until after the transaction at issue here closed on December 31, 1986. Plaintiff alleges that it has been damaged by defendants’ actions, but specifies only that it has lost undesignated tax benefits and suffered undesignated adverse tax consequences. DISCUSSION I. The Statute of Limitations for Philip Morris’ § 10(b) and Rule 10b-5 Claims Has Run Defendants move to dismiss Philip Morris’ § 10(b) and Rule 10b-5 claims as time-barred. After the parties briefed and argued this issue, the United States Supreme Court decided two determinative cases. In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. —, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), the Supreme Court ruled that the judicially implied private rights of action under § 10(b) and Rule 10b-5" }, { "docid": "12566048", "title": "", "text": "announcing the rule has already done so.” Id. at 2446. While James B. Beam involved a question of constitutionality and the instant case does not, it is clear that the James B. Beam holding on retroactivity in civil cases applies not only to those cases involving constitutional questions, but also to those cases applying retroactively reduced statutes of limitations. The Supreme Court vacated Welch v. Cadre Capital, 923 F.2d 989 (2d Cir.1991), vacated sub nom. Northwest Savings Bank, PaSA v. Welch, — U.S. —, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991), for reconsideration in light of Lampf and James B. Beam. In Welch, the District Court had anticipated the decisions in Ceres Partners v. GEL Associates, 918 F.2d 349 (2d Cir.1990) and Lampf and applied the one year/three year limitations period retroactively. Welch v. Cadre Capital, 735 F.Supp. 467, 476-477 (D.Conn.1989). The Second Circuit reversed, holding that under the three-part test set forth in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the case “[fell] within the exception to the general practice of applying new judicial decisions retroactively.” Welch, 923 F.2d at 991, 993. That Welch was remanded by the Supreme Court for reconsideration in light of Lampf and James B. Beam is a clear indication that the James B. Beam analysis was meant to apply to cases involving retroactively reduced statutes of limitations. Furthermore, in its reconsideration of Welch after remand, the Second Circuit conclusively held, “[T]he retroactive ruling in Lampf is to be applied retroactively to all cases not finally adjudicated on the date when Lampf was decided. Welch v. Cadre Capital, 946 F.2d 185, 187-88 (2d Cir.1991). In light of these recent decisions, the limitations period adopted in Lampf must be applied to the present case. Philip Morris filed this suit on December 28,1990, more than three years after the December 31, 1986 closing of the transaction at issue. Accordingly, Philip Morris’ § 10(b) and Rule 10b-5 claims is not timely and are dismissed. II. Catalyst is an Indispensible Party Having dismissed all of plaintiff’s claims arising under federal statutes, this" }, { "docid": "7910361", "title": "", "text": "that appeal. Id. at 364. We faced the issue again in Welch v. Cadre Capital, 923 F.2d 989 (2d Cir.1991) (“Welch I”), vacated and remanded sub nom. Northwest Savings Bank v. Welch, - U.S. -, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991), ruling that the new limitations period did not apply retroactively to bar the Welch complaint. See also Levine v. NL Industries, Inc., 926 F.2d 199, 201-02 & n. 1 (2d Cir.1991). Thereafter, the Supreme Court adopted the one-year/three-year limitations period in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, - U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (“Lampf”), and applied the new period retroactively to the Lampf complaint. The Court remanded Welch I for reconsideration in light of Lampf and James B. Beam Distilling Co. v. Georgia, - U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (“Beam”). Northwest Savings Bank v. Welch, - U.S. -, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991). On remand, we bowed to the force of Lam-pf and Beam and applied the new limitations period retroactively to bar the Welch complaint. Welch v. Cadre Capital, 946 F.2d 185 (2d Cir.1991) (“Welch II”). The next move was made by Congress. On December 19, 1991, Congress amended the ’34 Act by enacting section 27A to modify the retroactive effect of the Lampf ruling. See Federal Deposit Insurance Corporation Improvement Act of 1991, § 476, Pub.L. 102-242, 1991 U.S.C.C.A.N. (105 Stat.) 2236. This provision provides for reinstatement of certain actions dismissed under Lampf, provided the action was commenced prior to June 19, 1991, the date of the Lampf decision, and had been timely filed according to the statute of limitations applicable on June 19, 1991. In the pending case, the appellees resist the motion to remand for application of the benefit of section 27A, contending that section 27A does not help Henley because his suit was not timely filed under the law in effect on June 19, 1991. Appellees point out that prior to June 19, this Court had anticipated Lampf by adopting the one-year/three-year limitations period in Ceres Partners. However, on June 19," }, { "docid": "6627082", "title": "", "text": "of the “ ‘two separately-timed and alternative limitations periods’ ”), cert. denied, 434 U.S. 1035 (1978). We recently have rejected this practice of adopting the most analogous state limitations period for securities fraud claims, and instead have adopted a uniform one year/ three year federal limitations period for such claims. Ceres Partners v. GEL Assoc., 918 F.2d 349 (2 Cir.1990). In adopting the new one year/three year rule in Ceres, we left open the question of whether that period should be applied retroactively to other actions already commenced as of the date of the Ceres decision. Subsequently, we held that the new limitations period set forth in Ceres should not be applied retroactively where such application would conflict with the purposes of the rule or produce inequitable results. Welch v. Cadre Capital, 923 F.2d 989, 992-95 (2 Cir.) (applying criteria set forth in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)), vacated and remanded sub nom. Northwest Savings Bank v. Welch, 111 S.Ct. 2882 (1991). On June 20, 1991, the Supreme Court held that “[Ijitigation instituted pursuant to § 10(b) and Rule 10b-5 ... must be commenced within one year after discovery of the facts constituting the violation and within three years of such violation.” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 111 S.Ct. 2773, 2782 (1991). At the direction of the Supreme Court, we reconsidered our Welch decision in light of the Court’s decision in Lampf (and in James B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439 (1991)) and held that “the retroactive ruling in Lampf is to be applied retroactively to all cases not finally adjudicated on the date when Lampf was decided.” Welch, supra, 946 F.2d at 188. On December 19, 1991, Congress proscribed pro forma retroactive application of the Lampf rule by amending the Securities Exchange Act of 1934. Federal Deposit Insurance Corporation Improvement Act of 1991, § 476, Pub.L. 102-242, 1991 U.S.C.C.A.N. (105 Stat.) 2236, codified as § 27A of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa-l (Supp.III 1991). Under § 27A, Congress required that “[t]he limitation period for" }, { "docid": "12550666", "title": "", "text": "plaintiffs in the Alberti action are alleged to have purchased their limited partnership interests in Sacramento Associates by February of 1985. Alberti Comp. ¶ 147. B. Prior Proceedings The original complaint in the Alberti action was filed on May 22, 1990. An amended complaint naming an additional eighteen plaintiffs was filed on June 28, 1990. The second amended complaint (the “Alberti complaint”), which is the subject of the present motions, was deemed filed on February 1, 1991 in response to this court’s dismissal of the complaint in the related action of Morin v. Trupin, 88 Civ. 5743 and pursuant to an order of this court dated February 20, 1991. C. Discussion 1. 10(b) Claims Against all Moving Defendants are Barred by the Statute of Limitations Recently, in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. —, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), the Supreme Court recently held that private actions under Section 10(b) of the 1934 Act must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. Id. 111 S.Ct. at 2781-82. The Supreme Court applied that statute of limitations retroactively to bar a complaint that may otherwise have been timely under prior law. The retroactivity of the Lampf rule was confirmed by the Court’s subsequent holding in James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 2447-48, 115 L.Ed.2d 481 (1991) (when Court applies rule of law to litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata), and by the Second Circuit in Welch v. Cadre Capital, 946 F.2d 185 (2d Cir.1991) (Lampf to be applied retroactively to all cases not finally adjudicated on date Lampf decided). The Alberti plaintiffs’ 10(b)/ 10b-5 claims against the Moving Defendants are untimely under Lampf and are therefore dismissed. According to the complaint, all of the plaintiffs in the Alberti action purchased their interests in Sacramento Associates by February of 1985. The original complaint in that action was filed on May 22," }, { "docid": "12264100", "title": "", "text": "and the Second Circuit’s decision in Welch v. Cadre Capital, 946 F.2d 185 (2d Cir.1991) (holding that one year/three year limitations period by the Supreme Court in Lampf applies retroactively to all cases pending on direct review). Philip Morris and the present case arise from the same set of facts, are based on almost the same allegations, and involve the same attorneys. Accordingly, for the reasons stated in Philip Morris, supra, the federal securities claims in this action are dismissed. In Philip Morris, the absence of complete diversity between all plaintiffs and all defendants prevented this Court from accepting jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332. Here, however, there is complete diversity of citizenship. Accordingly, Defendants’ arguments related to the state law claims will be addressed. II. PERSONAL JURISDICTION OVER SAN DIEGO San Diego argues that this Court lacks personal jurisdiction over it. In a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), the plaintiff has the ultimate burden of establishing jurisdiction over the defendant by a preponderance of the evidence. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). However, at this stage of the litigation, when discovery has been stayed, Plaintiffs need only make out a prima facie case for jurisdiction through their pleadings and affidavits. Cutco Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). Such pleadings and affidavits are to be construed in the light most favorable to the Plaintiffs, and all doubts must be resolved in the Plaintiffs’ favor. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). Plaintiffs allege that this Court has personal jurisdiction over San Diego under New York Civil Practice Law & Rules (“CPLR”) §§ 302(a)(2) and 302(a)(3). A. CPLR § 302(a)(2) CPLR 302(a)(2) permits the exercise of jurisdiction over an out-of-state defendant who commits a tortious act within New York either in person or through an agent. Courts have defined “agent” broadly to include not only a defendant’s formal agents, but also, under certain circumstances, a defendant’s co-conspirators. Lehigh Valley Indus., Inc. v. Birenbaum, 389 F.Supp. 798, 806-7 (S.D.N.Y.1975), aff'd," }, { "docid": "12566043", "title": "", "text": "January 1, 1995. Complaint, ¶¶ 10-11. While Tepco was not a party to the transaction, it did deliver to the investors a “Letter of Representation, Consent and Further Agreement” dated December 15, 1986. In this letter, Tepco repeated its understanding of the New Power Sale Agreement and represented the following: 1. At the FERC public hearings regarding the reasonableness of Alamito’s prospective rates, Tepco would not intentionally provide any testimony supporting a position that Alamito’s rates were not reasonable; 2. Tepco would not unilaterally seek reductions from FERC before January 1, 1995; 3. Even after January 1, 1995, any relief Tepco might seek from FERC would not impair Alamito’s ability to pay its costs of operation, including its lease obligations. Complaint, ¶ 23. San Diego was not a party to any of these agreements. Philip Morris claims that in early December 1986, San Diego notified Alamito of its view that under the Niagara Mohawk ruling, if the proposed sale and leaseback transaction closed, it would be entitled to a reduction in the rates it was paying Alamito for blended power pursuant to the Alamito-San Diego Power Sale Agreement. Furthermore, San Diego told Alamito that it felt obligated to raise its claim with FERC before the transaction closed or risk waiving it. Philip Morris also alleges that Alamito persuaded San Diego not to make its intentions known until after the deal closed for fear the transaction would abort. In addition, Philip Morris charges that San Diego suggested that Alamito should “maybe ... finesse its documents to our advantage now.” Complaint, ¶ 30. Subsequently, Alamito’s general counsel updated its representations and warranties to the plaintiff with a litigation letter which described Alamito’s FERC proceedings involving San Diego, but failed to mention the possibility of San Diego raising a Niagara Mohawk challenge to the rates charged by Alamito to San Diego. Philip Morris claims that Catalyst and Tepco, each of which had made representations and warranties to the investors that it knew of no fact which would adversely affect the transaction, knew of San Diego’s intention to apply for a reduction in rates" }, { "docid": "12264098", "title": "", "text": "15, 1989, San Diego filed with FERC a challenge to the rates it was being charged by Alamito, alleging that it was entitled to a set-off for the capital gain Alamito realized from the sale of its facilities. On the same day, the Arizona Corporation Commission (“ACC”), an Arizoná state utility regulatory agency, filed a similar challenge to the rates charged to Tepco by Alamito under the New Power Sale Agreement. San Diego and Alamito later entered into a settlement agreement which an administrative law judge has now certified to FERC for approval. San Diego Gas & Electric v. Century Power Corp., 54 F.E.R.C. ¶ 63,024 (March 8, 1991). The administrative law judge also issued an initial decision which basically accepted the ACC’s position regarding Alamito’s treatment of the gain realized on the sale of its facilities. Arizona Corp. Comm’n v. Century Power Corp., 55 F.E.R.C. ¶ 63,016 (April 30, 1991). FERC review of that decision is now pending. Plaintiffs filed the instant suit on March 20, 1991, charging, among other allegations, that: (1) they were not informed by Defendants of the potential effect of the Niagara Mohawk decision on the sale and leaseback transaction; (2) Defendants Tepco, Catalyst and Century made false representations of material facts related to the transaction; and (3) San Diego intended to bring a regulatory challenge based on Niagara Mohawk but conspired with the other defendants not to bring its challenge until after the sale and leaseback transaction closed on December 31, 1986. DISCUSSION I. FEDERAL SECURITIES CLAIMS The parties make essentially the same arguments made in the related Philip Morris case. In that case, this Court dismissed the Plaintiff’s federal securities claims as time-barred following the United States Supreme Court’s decisions in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. —, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (upholding the one year/three year statute of limitations for § 10(b) and Rule 10b-5 claims), and James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (concerning retroactive application of new rules of decision in civil cases)," }, { "docid": "4978271", "title": "", "text": "remanded sub nom. Northwest Savings Bank v. Welch, — U.S. -, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991), the Second Circuit relied on a Chevron Oil analysis and declined to apply the new limitations period retroactively to bar the complaint. On June 20,1991 the Supreme Court held that Section 10(b) claims were governed by a federal statute of limitations of one year after the plaintiff discovers the facts constituting the violation, and in no event more than three years after such violation. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). The Court applied the rule to the litigants in the case. On the same day the Supreme Court decided James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), holding that “when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata,” id. at -, 111 S.Ct. at 2448, and that it is therefore “error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so.” Id. at -, 111 S.Ct. at 2446. Justice Souter, who announced the judgment, saw the retroactivity question as a “choice of law” matter in which “principles of equity and stare decisis” prevail over claims based on a Chevron Oil analysis. Id. at -, 111 S.Ct. at 2446. On September 5, 1991 defendants moved for summary judgment as to the Section 10(b) and Rule 10b-5 claims on the basis of Lampf and Beam. Under those decisions this court would have granted defendants’ motion. See Welch v. Cadre Capital, 946 F.2d 185 (2d Cir.1991) (“Welch II”) (barring complaint after remand in light of Lampf and Beam). But on December 19, 1991 the President signed the Federal Deposit Insurance Corporations Improvement Act of 1991, Pub. Law 102-242, 105 Stat. 2236, codified as 15 U.S.C. § 78aa-l. Section 476 of that legislation amends Section 27A of the Securities Exchange Act of" }, { "docid": "11149444", "title": "", "text": "drawing reasonable inferenees against the moving party.” Knight, 804 F.2d at 11. The inquiry under a motion for summary judgment is thus the same as that under a motion for a directed verdict: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). 2. Plaintiffs’ Section 10(b) Claim Defendants move for summary judgment on plaintiff’s § 10(b) claim on the grounds that this claim is time-barred. The Supreme Court has recently decided that the limitations period applicable to implied private claims under § 10(b) of the Exchange Act and Rule 10b-5 is the one- and-three-year structure applicable to express causes of action under the Exchange Act. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. —, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). Thus, the Court held that “litigations instituted pursuant to § 10(b) and Rule 10b-5 therefore must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.” See id., 111 S.Ct. at 2782. Significantly, the Supreme Court applied its holding retroactively in Lampf, thereby making the plaintiff-respondents’ lawsuit untimely. See id. at 2782. In James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), decided the same day as Lampf, the Court addressed the issue of retroactivity with respect to newly announced rules of law, declaring that it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so and that “[ojnee retroactive application is chosen for any assertedly new rule, it is chosen for all others who might seek its prospective application.” See id., 111 S.Ct. at 2447-2448. In light of Beam, the Second Circuit has recently confirmed that Lampf will be applied retroactively in this Circuit. See Welch v. Cadre Capital, 946 F.2d 185 (2d Cir.1991). In the instant case" }, { "docid": "7910360", "title": "", "text": "JON 0. NEWMAN, Circuit Judge: This motion to remand a pending appeal requires renewed consideration of the issue whether the new uniform federal limitations period for securities fraud claims applies retroactively. The issue arises on a motion by Julian Henley to remand to the District Court his appeal from the September 30, 1991, judgment of the District Court for the District of Connecticut (T.F. Gilroy Daly) dismissing as time-barred his suit under section 10(b) of the Securities Exchange Act of 1934 (“the ’34 Act”), 15 U.S.C. § 78j(b) (1988). See Henley v. Slone, 774 F.Supp. 98 (D.Conn.1991). We grant the motion to remand. We first encountered the retroactivity issue in Ceres Partners v. GEL Associates, 918 F.2d 349 (2d Cir.1990), in which we announced a uniform limitations period of the earlier of one year from the date the fraud was or reasonably should have been discovered or three years from the date of the transaction. In adopting the new one-year/three-year period, we explicitly left open the retroactivity issue, which did not affect the outcome of that appeal. Id. at 364. We faced the issue again in Welch v. Cadre Capital, 923 F.2d 989 (2d Cir.1991) (“Welch I”), vacated and remanded sub nom. Northwest Savings Bank v. Welch, - U.S. -, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991), ruling that the new limitations period did not apply retroactively to bar the Welch complaint. See also Levine v. NL Industries, Inc., 926 F.2d 199, 201-02 & n. 1 (2d Cir.1991). Thereafter, the Supreme Court adopted the one-year/three-year limitations period in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, - U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (“Lampf”), and applied the new period retroactively to the Lampf complaint. The Court remanded Welch I for reconsideration in light of Lampf and James B. Beam Distilling Co. v. Georgia, - U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (“Beam”). Northwest Savings Bank v. Welch, - U.S. -, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991). On remand, we bowed to the force of Lam-pf and Beam and applied the new limitations period retroactively" } ]

[ { "docid": "11779155", "title": "", "text": "618 S.W.2d 535, 541 (Tex.1981); see also DTPA § 17.-44. Nevertheless, this Court has held that the DTPA, however far-reaching it may be, has not completely supplanted the Texas common law of contracts. “[A] simple breach of contract is not contemplated as a deceptive trade practice under the Texas DTPA____” Dura-Wood Treating Co. v. Century Forest Industries, Inc., 675 F.2d 745, 756 (5th Cir.), cert. denied, 459 U.S. 865, 103 S.Ct. 144, 74 L.Ed.2d 122 (1982). “[A]n allegation of breach of contract— without more — does not constitute a false, misleading, or deceptive action such as would violate section 17.46 of the DTPA.” Id. Although the Dura-Wood defendant had “acted unconscionably in breaching the contract,” the DTPA did not apply. Id. at 755-56. The Dura-Wood panel directly based its holdings on two Texas intermediate court opinions. See Coleman v. Hughes Blanton, Inc., 599 S.W.2d 643, 646 (Tex.Civ.App.—Texarkana 1980, no writ); Holloway v. Dannenmaier, 581 S.W.2d 765, 767 (Tex.Civ.App.—Fort Worth 1979, writ ref'd n.r.e.). As the Holloway court observed, “[ujsually mere failure to later perform a promise does not constitute misrepresentation.” Id. (citation omitted). The Texas Supreme Court has now adopted the rule of Dura-Wood and the lower Texas courts that “a mere breach of contract, without more, does not constitute a ‘false, misleading or deceptive act’ in violation of the DTPA.” Ashford Development, Inc. v. USLife Real Estate Services Corp., 661 S.W.2d 933, 935 (Tex.1983) (citing DuraWood and Coleman). The district court below applied this rule in its determination that the Helmses had no cause of action under the DTPA. We agree. The “more” that is required to change a breach of contract action into a DTPA claim is not settled by Texas case law. In Martin v. Lou Poliquin Enterprises, Inc., 696 S.W.2d 180 (Tex.App.—Houston [14th Dist] 1985, writ ref'd n.r.e.), evidence indicated that a defendant which solicited Yellow Pages advertising contracted with the plaintiff to submit the plaintiff’s ad to the telephone company but failed to do so. The defendant then assured the plaintiff that the ad had been submitted, and the plaintiff took no further action until" } ]

[ { "docid": "4986220", "title": "", "text": "6443116 at *6. In this case, Beauty Manufacturing argues that Ashland made “an affirmation or promise” that it was shipping Dimethicone by placing the number 113526 on its order confirmations, invoices, and shipping materials. While the number 113526 is in some ways an “affirmation or promise,” the court concludes that this case is better understood as a breach of contract case and not a breach of warranty case. This is because the failure of Ashland to deliver Dimethicone is really a breach of the contract’s requirement that Beauty Manufacturing receive Dimethicone. Because placing 113526 on the written materials does not “describe attributes, suitability for a particular purpose, [or] ownership of what is sold,” Beauty Manufacturing’s claim for breach of warranty fails. C. Texas Deceptive Trade Practices Act The Texas Supreme Court has “repeatedly held that a mere breach of contract, without more, is not a DTPA violation.” Rocky Mountain Helicopters, Inc. v. Lubbock County Hospital District, 987 S.W.2d 50, 53 (Tex.1998) (citing Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14-15 (Tex.1996); La Sara Grain Co. v. First National Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984); Ashford Development, Inc. v. USLife Real Estate Services Corporation, 661 S.W.2d 933, 935,(Tex.1983)). In this case, Beauty Manufacturing brought claims against Ashland under the DTPA. Tex. Bus. & Com.Code §§ 17.41-63. In particular, Beauty Manufacturing claims Ashland: (1) breached “an express warranty” under Section 17.50(a)(2); (2) misrepresented the “characteristics” and “uses” of the ingredient, under Section 17.46(b)(5); and (3) misrepresented that the ingredient provided was of the “style” requested, under Section 17.46(b)(7). However, this is a simple breach of contract case, based on a misunderstanding over which chemical one company wished to purchase from another company. Because Beauty Manufacturing has presented no evidence why this is more than a breach of contract claim, its DTPA claim against Ashland fails -as well. III. DAMAGES Under Section 2.714, Beauty Manufacturing is entitled to damages for its breach of contract claims “as determined in any manner which is reasonable.” Having reviewed the evidence in this case, the court concludes that Beauty Manufacturing is entitled to $231,016.43" }, { "docid": "1589274", "title": "", "text": "51 (1998); Fyfe v. Curlee, 902 F.2d 401, 403 (5th Cir.1990); Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.1989). . Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir.1987). . 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). . 112 F.3d 789 (5th Cir.1997). . Docket no. 5 at 1-2; Vernon’s Tex Code Ann., Water Code, § 36.0051 (Supp.2004). . Vernon’s Tex.Code Ann., Water Code, § 36.252 (Supp.2004). . Docket no. 5 at 2, 3-4. . Docket no. 8 at 2. . Docket no. 10 at 4; docket no. 8 at 7. As noted above, in addition to damages, fees and costs, plaintiffs seek; a declaration that the administrative denial of plaintiffs' well permit applications is null and void as well as of certain specified rights; a decision reversing the administrative denial of plaintiffs’s well permit applications and a remand to the GCGCD with instructions; and any further, appropriate \"remedies and relief at law or in equity.” See docket no. 1 at 28. . Docket no. 8 at 2-4. . Id. at 2-7. . Id. . Docket no. 8 at 2, 5-7; docket no. 10 at 4-5. . Colorado River Water Cons.Dist. v. United States, 424 U.S. 800, 821, 96 S.Ct. 1236, 1248, 47 L.Ed.2d 483 (1976) (internal citation omitted). See also England v. Louisiana Bd. of Med. Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 464-65, 11 L.Ed.2d 440 (1964) (\" 'When a federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction' ”) (internal citation omitted). . Colorado River Water Cons.Dist., 424 U.S. at 813, 96 S.Ct. at 1244; Wilson v. Valley Electric Membership Corp., 8 F.3d 311 (5th Cir.1993). . Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116 S.Ct. 1712, 1727, 135 L.Ed.2d 1 (1996) (quoting Colorado River Water Cons. Dist., 424 U.S. at 813, 96 S.Ct. at 1244) (internal quotation omitted). . Id. at 726-27, 116 S.Ct. at 1726 (quoting NOPSI v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. at 2514, 105" }, { "docid": "16432736", "title": "", "text": "accordance with this Opinion and Order. . Joint Stipulation, Item 5 in Record on Appeal (ROA), ¶ 11. The Joint Stipulation was instrument no. 14 filed in Adversary Proceeding 01-3515. Although the Joint Stipulation references a number of exhibits, the exhibits were not attached to the copy included in the ROA. . The parties do not explain why the Bank did not attach the proceeds from Dota’s sale of the Silverado when they were deposited in his account. . Plaintiff's Complaint, Item 1 in ROA, at pp. 4-5. . Joint Stipulation, Item 5 in ROA. . Memorandum Opinion of July 30, 2002, Item 6 in ROA. .Id. at p. 4. . Statement of Issues on Appeal, Paragraph II in Designation of Items to be Included in Record on Appeal and Statement of Issues. (There is no Issue No. 1.) . Brief of Appellant, Docket Entry No. 5, at pp. 12-14. . Id. at pp. 8-11. In the 1995 legislative session the COTA, formerly cited as Tex.Rev. Civ. Stat. Ann. art. 6687-1 (Vernon Supp. 1995), became part of the Texas Transportation Code and is now properly cited as Tex. Transp. Code Ann. §§ 501.001 et seq. (Vernon 1999). . Brief of Appellee, Docket Entry No. 6, at pp. 4-7. . Brief of Appellant, Docket Entry No. 5, at p. 11. . Brief of Appellee, Docket Entry No. 6, at pp. 4-5. . See Joint Stipulation, Item 5 in ROA. . Brief of Appellant, Docket Entry No. 5, at p. 10. . The parties stipulated that the Silverado \"was a used vehicle, for which a Certificate of Title had already been issued.” Joint Stipulation, Item 5 in ROA, ¶ 7. The COTA defines \"used motor vehicle” to mean \"a motor vehicle that has been the subject of a first sale.” Tex. Trans. Code § 501.002(23). Sale of a motor vehicle in Texas is either a first sale or a subsequent sale. Radcliff Finance Corp. v. City Motor Sales, Inc., 159 Tex. 493, 323 S.W.2d 591, 594 (1959)(\"[T]he Legislature intended for these two terms when taken together to embrace every Texas transfer of" }, { "docid": "10707314", "title": "", "text": "to ensure that such collections and disbursements occur equitably, according to the dictates of Congress.” Id. . Minutes of Proceeding (Docket No. 75). . Claim 3-1 Supplemental Response (Docket No. 84), at ¶ 3. . Id. at ¶ 8. . See id. . Claim 9-1 Supplemental Response (Docket No. 83), at ¶ 3. . Claim 9-1 Supplemental Response (Docket No. 83), at ¶ 5. . Id. at ¶11. . § 501(a); see also Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 449, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007). . § 101(10)(A). . § 101(5)(A). . Fed. R. Bankr.P. 3001(a). . Fed. R. Bankr.P. 3001(c)(1). . In re Reynolds, 470 B.R. 138 (Bankr. D.Colo.2012). . In re TJnioil, Inc., 962 F.2d 988, 992 (10th Cir.1992) (permitting the amendment of a proof of claim where a creditor/trustee (rather than the trust) was incorrectly listed as the creditor on the original proof of claim). . See id.; see also In re Hemingway Transp., 954 F.2d 1, 10 (1st Cir.1992) (stating \"[a]mendments to proofs of claim timely filed are to be freely allowed, whether for purposes of particularizing the amount due under a previously-asserted right to payment, or simply to cure technical defects in the original proof of claim. See, e.g., In re Sambo's Restaurants, Inc., 754 F.2d 811, 816-17 (9th Cir. 1985). If allowed, of course, the amendment relates back to the filing of the original proof of claim. Id.\"). . 4 Collier on Bankruptcy ¶ 501.02[4] (16th ed. 2012) (citing In re Hemingway Transp., 954 F.2d 1, 10 (1st Cir.1992), which states “[t]he equitable determination to allow or disallow an amendment to a proof of claim timely filed is entrusted to the sound discretion of the bankruptcy court.”). . Proof of Claim No. 9-1. . Amended Proof of Claim No. 9-2. . Compare Proof of Claim No. 9-1, with Amended Proof of Claim No. 9-2. . § 502(a); Harrison, 987 F.2d 677, 680 (10th Cir.1993) (citing In re Padget, 119 B.R. 793, 797 (Bankr.D.Colo.1990)). In Chapter 13 cases, only \"allowed\" claims are entitled" }, { "docid": "644744", "title": "", "text": "Nicolau v. State Farm Lloyds, addresses the sufficiency of the evidence to support a jury’s finding that a plumbing leak caused foundation movement in the insured plaintiffs’ home. The foundation exclusion, if one was even present, was neither quoted nor discussed. The Sharps simply cannot avoid clear Texas law supporting State Farm’s denial of their claim. Order For the reasons discussed above, the Defendant’s Motion for Summary Judgment is GRANTED and Plaintiffs’ claims are dismissed with prejudice. . Docket Entry No. 45. . Docket Entry No. 17. . Fed.RXiv.P. 56(c). . D.E.W., Inc. v. Local 93, Laborers’ Int’l Union, 957 F.2d 196, 199 (5th Cir.1992). . Docket Entry No. 45, Exhibit A-l at page 5. . Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). . Lambros v. Standard Fire Ins. Co., 530 S.W.2d 138, 141-142 (Tex.Civ.App.—San Antonio 1975, writ ref’d). See also, Auten v. Employers Nat'l Ins. Co., 722 S.W.2d 468, 471 (Tex.App.—Dallas 1986, writ denied) (loss by contamination excluded regardless of the fact that it resulted from negligence of a third party); General Ins. Co. v. Hallmark, 575 S.W.2d 134, 136 (Tex.Civ.App.—Eastland 1978, writ ref’d n.r.e.) (language excluding loss from settling not limited to certain causes; fact that settling brought about by water leak was immaterial); Bentley v. Nat’l Standard Ins. Co., 507 S.W.2d 652, 654 (Tex.Civ.App.—Waco 1974, writ ref'd n.r.e.) (fact that settling and cracking resulted from drought immaterial, and did not bring loss outside exclusion). Following Lambros, United States District Judge Sam Sparks recently granted a summary judgment motion in favor of an insurer based upon an identical exclusion to that in the Sharps' policy. See Jim C. Buell v. State Farm Gen’l Ins. Co., Cause No. A-95-766-SS, Docket Entry No. 30 (June 13, 1996). . Docket Entry No. 46, § III. . Docket Entry No. 45, Exhibit A-l, page 2. . Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521 (Tex.1995). . Id. . Mustang Tractor & Equip. Co. v. Liberty Mutual Ins. Co., 76 F.3d 89, 91 (5th Cir.1996) (parol evidence of intent is admitted" }, { "docid": "8541735", "title": "", "text": "be actionable under section 17.50(a)(1) because it constitutes a violation of the Insurance Code rather than a violation specified in the laundry list. The logic of this evades us. See Beaumont Rice Mill and Tex.Rev.Civ.Stat. art. 21.21-2(2)(c) (Supp. 1993). .The Texas Supreme Court frequently has explained that the \"DTPA does not represent a codification of the common law.” Alvarado v. Bolton, 749 S.W.2d 47, 48 (Tex.1988) (quoting Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex. 1980)). The common practice of collectively referring to these claims as \"bad faith” claims is understandable in light of their complexity and common origin. We are wary, however, of the implicit assumption that the list of defined practices in Insurance Code article 21.21-2, the DTPA, and the common law are all coextensive. .After the close of the evidence the court instructed the jury that an unfair or deceptive trade practice under the DTPA involved: (1) Misrepresenting to the insured pertinent facts or policy provisions relating to the coverage at issue, or (2) failing to adopt and implement reasonable standards for prompt investigation of claims arising under an insurance company's insurance policies, or (3) not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims submitted in which liability has become clear, or (4) failing to exercise good faith in the investigation, processing, and. denial of an insurance claim. The court also instructed the jury on the common-law bad faith claim that Thrash was obligated to establish one of the following: (1) State Farm had no reasonable basis for denial of Mr. Thrash's claim or for delay in payment; or (2) State Farm failed to determine whether there was a reasonable basis for the denial or delay; or (3)State Farm failed to promptly and equitably pay Mr. Thrash’s claim when liability became reasonably clear. Neither party objected to these instructions. We will assume that the court correctly instructed the jury on the duties created under the tripartite scheme recognized in Vail and say only that we find no plain error in the suggested description of the controlling law. . E.g., Aranda, 748 S.W.2d" }, { "docid": "902752", "title": "", "text": "not allege or present evidence of any cognizable losses. It does not allege an interruption of services as a result of Feingold’s actions, or any costs incurred to investigate and respond to an interruptions or any service interruption. Feingold’s motion for summary judgment on Alliantgroup’s CFAA claim is granted. G. Civil Conspiracy The elements of civil conspiracy include (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex.2005). Conspiracy is a derivative tort requiring an unlawful means or purpose. Chu v. Hong, 249 S.W.3d 441, 444 (Tex.2008); see also Juki v. Airington, 936 S.W.2d 640, 644 (Tex.1996) (merely proving joint intent to engage in conduct that resulted in injury not sufficient; civil conspiracy required specific intent to agree to accomplish unlawful purpose or to accomplish lawful purpose by unlawful means). Civil conspiracy is a derivative tort. See Meadows v. Hartford Life Ins. Co., 492 F.3d 634, 640 (5th Cir.2007). Because Feingold is entitled to summary judgment on all other tort claims, he is entitled to summary judgment on the civil conspiracy claim. IV. Conclusion Feingold’s motion for summary judgment is granted except as to the claim that he failed to return a bonus. All claims except the breach of contract claim based on Feingold’s failure to repay the bonus are dismissed, with prejudice. A status conference is set for April 8, 2011, at 8:15 a.m. to address the only remaining claim. Counsel may participate by telephone. . The summary judgment record includes: Feingold’s Employment Agreement with Alliantgroup, (Docket Entry No. 81, Ex. A-l; Docket Entry No. 85, Ex. A — 8); Feingold’s February 3, 2009 e-mail to Robert D'Andrea and Paul Oliveira, (Docket Entry No. 81, Ex. A-2; Docket Entry No. 88, Ex. F); this court’s memorandum and opinion reforming Feingold’s covenant not to compete, (Docket Entry No. 81, Ex. B); the transcript from the April 28, 2009 temporary injunction hearing before this court," }, { "docid": "20960083", "title": "", "text": "was merely explaining that the shipment was a through shipment that did not originate in California but from elsewhere outside the United States. . Hidalgo Declaration, Docket Entry No. 17, Exhibit G; Doran Deposition at p. 86, Docket Entry No. 17, Exhibit A. . See Bill of Lading at ¶ 6, Docket Entry No. 17, Exhibit D; Doran Deposition at pp. 56, 132, 135, 193, and 210-11; Docket Entry No. 22, Exhibit A. . Accord, Enterprise, Inc. v. M/V Sam Houston, 706 F.Supp. 451, 453 (E.D.La.1988) (limitation of liability in bill of lading prevails over any conflicting COGSA provision that is incorporated by reference into the bill of lading). . Bill of Lading at ¶ 2, Docket Entry No. 22, Exhibits C & D. . Bill of Lading at ¶ 4. . Bill of Lading at V 2(ii). . Mexico Liability Clause, Docket Entry No. 22, Exhibit G. . Plaintiffs Response to Defendant's Motion to Dismiss Based on Forum Non Conveniens at p. 5, Docket Entry No. 22. . 46 U.S.C. § 1303(8). . This contention is based on the allegation, unchallenged by APL, that as a result of the devaluation of the peso, the Mexico Liability Clause limits APL’s liability beneath the $500 per package threshold of COGSA. . Plaintiff's Reply at pp. 7-8, Docket Entiy No. 22. . General contract interpretation doctrine supports the court's analysis. When construing a contract the court must harmonize and give effect to all the provisions of an instrument so that none of the writing will be rendered meaningless. Tennessee Gas Pipeline Co. v. FERC, 17 F.3d 98, 102 (5th Cir. 1994); Chapman v. Orange Rice Milling Co., 747 F.2d 981, 983 (5th Cir. 1984); American Guarantee and Liability Ins. Co. v. Shel-Ray Underwriters, Inc., 844 F.Supp. 325, 331 (S.D.Tex.1993); Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 158 (1951). If the provisions in the instrument appear to conflict, they should be adapted to reflect the true intentions of the parties. American Guarantee, 844 F.Supp. at 331; Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983). The court" }, { "docid": "8541734", "title": "", "text": "Ins. Co., 788 S.W.2d 136, 147 (Tex.App.—Dallas), writ denied per curiam, 802 S.W.2d 650 (1990). . Beaumont Rice Mill, Inc. v. Mid-American Indem. Ins. Co., 948 F.2d 950, 952 (5th Cir.1991) (citing Aranda). . Tex.Bus. & Com.Codc Ann. § 17.50(a)(1) & (4). . Tex.Rcv.Civ.Stat. art. 21.21-2(2)(b)(4) (Supp. 1993). . 28 Tex.Admin.Code § 21.3 (1992). . 754 S.W.2d 129 (Tex. 1988). . At least one Texas court has questioned this aspect of the Vail decision. W.H. McGee & Co., Inc. v. Schick, 792 S.W.2d 513 (Tex.App.—Eastland 1990), vacated pursuant to settlement, 843 S.W.2d 473 (Tex.1992). The court noted first that Vail’s discussion of the issue was merely obiter dictum and that the Insurance Code only adopts as unlawful, practices \"defined” in section 17.46 of the DTPA. According to the court, an unlisted violation is a priori undefined and thus this aspect of the Vail decision is dicta. We need not address the issue. . Under the advanced Vail logic, the violation would become actionable under the DTPA under section 17.50(a)(4) even though it would not directly be actionable under section 17.50(a)(1) because it constitutes a violation of the Insurance Code rather than a violation specified in the laundry list. The logic of this evades us. See Beaumont Rice Mill and Tex.Rev.Civ.Stat. art. 21.21-2(2)(c) (Supp. 1993). .The Texas Supreme Court frequently has explained that the \"DTPA does not represent a codification of the common law.” Alvarado v. Bolton, 749 S.W.2d 47, 48 (Tex.1988) (quoting Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex. 1980)). The common practice of collectively referring to these claims as \"bad faith” claims is understandable in light of their complexity and common origin. We are wary, however, of the implicit assumption that the list of defined practices in Insurance Code article 21.21-2, the DTPA, and the common law are all coextensive. .After the close of the evidence the court instructed the jury that an unfair or deceptive trade practice under the DTPA involved: (1) Misrepresenting to the insured pertinent facts or policy provisions relating to the coverage at issue, or (2) failing to adopt and implement reasonable standards for" }, { "docid": "8541733", "title": "", "text": "1993). In his brief, Thrash claims that the court erred in not allowing him to recover exemplary damages and forcing him to elect among damage awards under the common law and the DTPA. Thrash has not filed a notice of appeal; we do not consider these points. F.R.A.P. 4(a)(3). See also Cyrak v. Lemon, 919 F.2d 320 (5th Cir. 1990). . The 1991 revisions to the Rules of Civil Procedure abolished the distinction between directed verdict and judgment notwithstanding the verdict. Both are now simply labeled judgment as a matter of law. Fed.R.Civ.P. 50. . Ayres v. Sears, Roebuck & Co., 789 F.2d 1173 (5th Cir.1986). . See Gross v. Black & Decker, Inc., 695 F.2d 858 (5th Cir.1983). . For a scholarly discussion of sufficiency review see Steven A. Childress & Martha S. Davis, Federal Standards of Review § 3.01 (2d ed. 1992). . Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 176 (5th Cir.1985). . 725 S.W.2d 165, 167 (Tex.1987). . 748 S.W.2d 210, 212-13 (Tex.1988). . Koral Indus., Inc. v. Security-Connecticut Life Ins. Co., 788 S.W.2d 136, 147 (Tex.App.—Dallas), writ denied per curiam, 802 S.W.2d 650 (1990). . Beaumont Rice Mill, Inc. v. Mid-American Indem. Ins. Co., 948 F.2d 950, 952 (5th Cir.1991) (citing Aranda). . Tex.Bus. & Com.Codc Ann. § 17.50(a)(1) & (4). . Tex.Rcv.Civ.Stat. art. 21.21-2(2)(b)(4) (Supp. 1993). . 28 Tex.Admin.Code § 21.3 (1992). . 754 S.W.2d 129 (Tex. 1988). . At least one Texas court has questioned this aspect of the Vail decision. W.H. McGee & Co., Inc. v. Schick, 792 S.W.2d 513 (Tex.App.—Eastland 1990), vacated pursuant to settlement, 843 S.W.2d 473 (Tex.1992). The court noted first that Vail’s discussion of the issue was merely obiter dictum and that the Insurance Code only adopts as unlawful, practices \"defined” in section 17.46 of the DTPA. According to the court, an unlisted violation is a priori undefined and thus this aspect of the Vail decision is dicta. We need not address the issue. . Under the advanced Vail logic, the violation would become actionable under the DTPA under section 17.50(a)(4) even though it would not directly" }, { "docid": "1589273", "title": "", "text": "could be proven consistent with the allegations.' Baton Rouge Bldg. and Constr. Trades Council AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir.1986).”); O’Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985). . Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). . Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). . Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1250 (5th Cir.1997); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994); Fernandez-Montes, 987 F.2d at 284. . Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir.1989). . Village Harbor Inc. v. United States, 559 F.2d 247, 249 (5th Cir.1977). . Lafleur v. Texas Dept. of Health, 126 F.3d 758, 759 (5th Cir.1997); Jackson v. City of Atlanta, Tex., 73 F.3d 60, 63 (5th Cir.), cert. denied, 519 U.S. 818, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996). . Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir.1997), cert. denied, 525 U.S. 822, 119 S.Ct. 65, 142 L.Ed.2d 51 (1998); Fyfe v. Curlee, 902 F.2d 401, 403 (5th Cir.1990); Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.1989). . Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir.1987). . 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). . 112 F.3d 789 (5th Cir.1997). . Docket no. 5 at 1-2; Vernon’s Tex Code Ann., Water Code, § 36.0051 (Supp.2004). . Vernon’s Tex.Code Ann., Water Code, § 36.252 (Supp.2004). . Docket no. 5 at 2, 3-4. . Docket no. 8 at 2. . Docket no. 10 at 4; docket no. 8 at 7. As noted above, in addition to damages, fees and costs, plaintiffs seek; a declaration that the administrative denial of plaintiffs' well permit applications is null and void as well as of certain specified rights; a decision reversing the administrative denial of plaintiffs’s well permit applications and a remand to the GCGCD with instructions; and any further, appropriate \"remedies and relief at law or in equity.” See docket no. 1 at 28. . Docket no. 8 at 2-4. . Id. at" }, { "docid": "7103687", "title": "", "text": "defendants Matagorda Ventures and Watch Wholesalers. The proposed fourth amended complaint seeks to add Watch Wholesalers as a plaintiff in the present litigation. (Docket Entry Nos. 55, 56). Federal Rule of Civil Procedure 15(a) provides that leave to amend pleadings “shall be freely given when justice so requires.” Although Rule 15 “evinces a bias in favor of granting leave to amend,” it is not automatic. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981); Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993). In deciding whether to grant leave to file an amended pleading, the district court may consider such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment. See Wimm, 3 F.3d at 139 (citations omitted). Each of the additional causes of action in the proposed third amended complaint stems from Travelers’ allegedly wrongful failure to defend or indemnify plaintiffs in the Movado Group lawsuit. The proposed third amended complaint adds claims of breach of extra-contractual duties arising from the same facts alleged as the basis of the alleged breaches of contract asserted in the second amended complaint. Under Texas law, extra-contractual tort claims under the Texas Insurance Code and the DTPA reqúire a showing that an insurer breached a duty of good faith and fair dealing. See Lawson v. Potomac Ins. Co., 1998 WL 641809 at *4 (N.D.Tex. Sept.14, 1998) (citing Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456, 460 (5th Cir.1997)). An insurer “breaches its duty of good faith and fair dealing by denying a claim when the insurer’s liability has become reasonably clear.” State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998). Travelers’ liability to defend the Movado Group lawsuit was not “reasonably clear.” Plaintiffs’ proposed claim of negligent misrepresentation is also without merit. In order for a tort duty to arise out of a contractual duty, in this case, negligent failure to perform a contract, the tort" }, { "docid": "23039170", "title": "", "text": "omitted)); Viles v. Security Nat’l Ins. Co., 788 S.W.2d 566 (Tex.1990) (the duty of good'faith and fair dealing arises “from an obligation imposed in law as a result of a special rela tionship between the parties governed or created by a contract” (internal quotations omitted)); Coffman v. Scott Wetzel Servs., Inc., 908 S.W.2d 516, 516 (Tex.App.-Fort Worth 1995, no writ) (citing Natividad for the proposition that no duty of good faith and fair dealing is owed by an agent to the insured absent privity of contract). Once again, Griggs has not alleged that his relationship with Blum was “governed or created by” any contract, or that his relationship with Blum was otherwise imbued with special characteristics that would give rise to the “special relationship” required to impose a duty of good faith and fair dealing. See Cavallini, 44 F.3d at 261-62; Viles, 788 S.W.2d at 567. There is, therefore, no basis under Texas law for Griggs’ claim against Blum for breach of the duty of good faith and fair dealing. Griggs also maintains that he has alleged viable claims against Blum under article 21.21 § 16(a) of the Texas Insurance Code and § 17.50(a)(4) of the Texas Deceptive Trade Practices Act. Article 21.21 § 4 of the Texas Insurance Code provides an extensive list of acts or practices forbidden as unfair or deceptive in the business of insurance. Tex. Ins.Code Ann. art. 21.21 § 4 (Vernon Supp.1999). Section 17.46 of the Texas Deceptive Trade Practices Act provides an extensive list of acts or practices that are forbidden in all businesses as unfair or deceptive. Tex. Bus. & Com.Code Ann. § 17.46 (Vernon Supp.1999). Both the Texas Insurance Code and the Texas Deceptive Trade Practices Act permit a private cause of action against “any person” who commits one of the prohibited acts or practices. See Tex. Ins.Code Ann. article 21.21 § 16 (Vernon Supp.1999); Tex. Bus. & Com.Code Ann. § 17.50 (Vernon Supp.1999). Texas courts have recently recognized that the statutory language is broad enough to permit in the appropriate circumstances a cause of action against an insurance agent who engages" }, { "docid": "8541736", "title": "", "text": "prompt investigation of claims arising under an insurance company's insurance policies, or (3) not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims submitted in which liability has become clear, or (4) failing to exercise good faith in the investigation, processing, and. denial of an insurance claim. The court also instructed the jury on the common-law bad faith claim that Thrash was obligated to establish one of the following: (1) State Farm had no reasonable basis for denial of Mr. Thrash's claim or for delay in payment; or (2) State Farm failed to determine whether there was a reasonable basis for the denial or delay; or (3)State Farm failed to promptly and equitably pay Mr. Thrash’s claim when liability became reasonably clear. Neither party objected to these instructions. We will assume that the court correctly instructed the jury on the duties created under the tripartite scheme recognized in Vail and say only that we find no plain error in the suggested description of the controlling law. . E.g., Aranda, 748 S.W.2d at 212; Arnold, 725 S.W.2d at 167; Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 831 (Tex. 1990) (stressing that the refusal to pay must be unreasonable). State Farm Lloyds, Inc. v. Palasek, 847 S.W.2d 279 (Tex.App.—San Antonio 1992, no writ); Jerry v. Kentucky Cent. Ins. Co., 836 S.W.2d 812 (Tex.App.—Houston [1st Dist.J 1992, no writ); St. Paul Guardian Ins. Co. v. Luker, 801 S.W.2d 614 (Tex.App.—Texarkana 1990, no writ). . See Automobile Ins. Co. v. Davila, 805 S.W.2d 897 (Tex.App.—Corpus Christi 1991, writ denied ). . Texas Empl. Ins. Ass’n v. Puckett, 822 S.W.2d 133 (Tex.App.—Houston [1st Dist.] 1991, writ denied). . The only evidence adduced at trial to support an award to compensate for mental anguish was Thrash's and his family's testimony to the effect that Thrash was \"embarrassed and worried\" over this lawsuit. Texas law does not recognize as compensable mere worry or embarrassment. Hicks v. Ricardo, 834 S.W.2d 587 (Tex.App.—Houston [1st Dist] 1992, no writ history). Thrash’s argument that the refusal to pay constituted libel per se for which no" }, { "docid": "2651744", "title": "", "text": "that (1) they were consumers of Defendants’ goods or services; (2) Defendants violated a specific provision of the DTPA, and that Defendants acts were a “producing cause” of actual damages. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996). The DTPA proscribes four categories of conduct: (1) false, misleading, or deceptive acts or practices; (2) any unconscionable action or course of action; (3) breach of an express or implied warranty; and (4) an act or practice in violation of Tex. Ins. Code § 541. See Tex. Bus. & Com. Code Ann. § 17.50(a). In the SCAC, Plaintiffs contend that Defendants violated the first three provisions. Defendants seek to dismiss each of Plaintiffs’ claims. a. Plaintiffs Have Adequately Alleged that Defendants Violated Specific Provisions of the DTPA Defendants contend that Plaintiffs have failed to adequately allege that Defendants violated a specific provision of the DPTA. The DTPA defines “false, misleading, or deceptive acts or practices” to include “failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.” Tex. Bus. & Prof. Code § 17.46(b)(24). Defendants simply incorporate the argu ments they raised against Plaintiffs’ California UCL claims on this point, stating that “Plaintiffs have failed to plead any ‘false, misleading, or deceptive’ act with the particularity required by Rule 9(b).” Docket No. 304, at 67. Because Defendants have raised no specific argument as to the DTPA and the Court has previously rejected these arguments in the context of Plaintiffs’ California UCL claim, the Court declines to dismiss Plaintiffs DTPA claim on this ground. Plaintiffs allege the failure to disclose the function and effect of the Carrier IQ Software was intended to and did induce consumers to purchase the subject phones. Because Plaintiffs have adequately alleged at least one predicate violation of the DTPA, the Court need not address whether Plaintiffs have adequately stated a violation of any other DTPA provision. b. Plaintiffs Have Failed" }, { "docid": "18867037", "title": "", "text": "is not subject to art. 2226. Plaintiff’s claim for attorneys’ fees under that statute is DISMISSED. IV. Conclusion Glens Falls’ motion for partial dismissal is hereby GRANTED in all respects. . On October 12, 1979, the court granted in part an earlier motion to dismiss, rejecting the applicability of Tex.Bus. & Comm.Code arts. 17.50(a)(2) and 17.50(a)(3) to this case, dismissing a claim for common-law punitive damages, and dismissing the balance of the deceptive trade practice claims without prejudice for failure to comply with Fed.R.Civ.P. 9(b). . Interestingly, Freeman does not rely upon Tex.Ins.Code art. 21.21(4)(1), which is made actionable as a deceptive trade practice by Tex. Ins.Code art. 21.21(16)(a) and Tex.Bus. & Comm.Code art. 17.50(a)(4). Section (4)(1) provides that “[m]aking, issuing, circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement misrepresenting the terms of any policy issued or to be issued or the benefits or advantages promised thereby . . . ” shall be an unfair and deceptive trade practice. Misrepresentation of an insurance policy is also prohibited by § 4 of the Texas State Board of Insurance Regulation In Respect to Insurance Trade Practice, Advertising and Solicitations, Docket No. 18663, Dec. 3, 1971, and made actionable as a deceptive trade practice by Tex.Ins.Code art. 21.21(16)(a) and Tex.Bus. & Comm.Code art. 17.50(a)(4). . This court has previously held that a pretrial order operates as an amendment of the pleadings to bring them into conformity with the order. R. T. Systems, Inc. v. Sandell, No. CA-3-78-0005-G (N.D.Tex., Aug. 24, 1979) (order denying motion to remand). . Although the statute speaks of types of companies rather than types of policies, its limitations are directed to life, health, and accident policies, and not to other types of policies which life, health, or accident insurance companies may issue. Evans v. Pacific National Fire Insurance Co., 367 S.W.2d 85, 87 (Tex.Civ. App.—Dallas 1963, writ ref'd n. r. e.); see By- bee v. Fireman’s Fund Insurance Co., 160 Tex. 429, 331 S.W.2d 910, 914 (1960); Maryland Casualty Co. v. Hopper, 237 S.W.2d 411, 416 (Tex.Civ.App.—El Paso 1950, no writ); Ocean" }, { "docid": "1589284", "title": "", "text": "Although true, this lends no support to Webb's position. The court further explained that a 'district court may only order a stay pending resolution of state proceedings; it cannot invoke abstention to dismiss the suit altogether.' Id.”). . Docket no. 5 at 3. . Id. . Id. . Docket no. 10 at 5. BexarMet's response does not address this ground for dismissal. See docket no. 8. . Docket no. 10 at 6-8. . Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733-34, 117 S.Ct. 1659, 1664, 137 L.Ed.2d 980 (1997) (citing Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)). . Exxonmobil Pipeline Company v. Bell, 84 S.W.3d 800 (Tex.App.-Houston 2002, pet. granted). . Section 36.105 of the Water Code provides in relevant part: (b) The power of eminent domain authorized in this section may not be used for the condemnation of land for the purpose of: (1) acquiring rights to groundwater, surface water or water rights; or (2) production, sale, or distribution of groundwater or surface water. Vernon’s Tex.Code Ann., Water Code, § 36.015(b) (Supp.2004). . Docket no. 5 at 3-4, . Id. . Docket no. 8 at 7-9; docket no. 10 at 10-12. . Docket no. 1 at 23. Plaintiffs also allege that the General Manager of Springs Hill Water Co. is the Chairman of the Board of Directors of GCGCD. Id. at 24. . Docket no. 5 at 4-6. . Docket no. 8 at 9-10; docket no. 10 at 12-14. . Docket no. 1 at 26. . Docket no. 8 at 10. . Docket no. 5 at 6. . Docket no. 10 at 15. . Docket no. 5 at 6-8. . Docket no. 8 at 10. . 28 U.S.C. § 1356(c)(1), (2), and (4). . Docket no. 5 at 7. . Docket no. 5. . See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). . Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir.2000); Douglass v. United Serv. Auto. Ass’n, 79 F.3d 1415, 1428" }, { "docid": "23260125", "title": "", "text": "also constitute a breach of warranty? If it does, we are holding that USFIC’s breach of the contract for failure to deliver a promised service constitutes a violation of the DTPA. Such a ruling, however, would seem to place us in direct conflict with the Texas Supreme Court’s repeated admonition that “[a] mere breach of contract is not a violation of the DTPA.” La Sara Grain v. First Nat’l Bank, 673 S.W.2d 558, 565 (Tex.1984); accord Helms v. Southwestern Bell Telephone Co., 794 F.2d 188, 191 (5th Cir.1986); Dura-Wood Treating Co. v. Century Forest Indus., Inc., 675 F.2d 745, 756 (5th Cir.1982). We have noted before that “[t]he ‘more’ that is required to change a breach of contract action into a DTPA claim is not settled by Texas case law.” Helms, 794 F.2d at 191. In this case, therefore, we must endeavor to determine whether the requirement of “more” can properly be satisfied by designating the promise to perform as an express warranty. Cf. id. at 191 n. 3 (indicating that because the “mere breach of contract” rule arose in claims charging violations of the DTPA other than breach of warranty, the rule’s applicability in a warranty case might be questioned); but see Ashford Dev., Inc. v. USLife Real Estate Serv. Corp., 661 S.W.2d 933, 935 (Tex.1983) (applying “mere breach of contract” rule to DTPA claim without examining the section of the Act defendant was claimed to have violated). While the DTPA makes the breach of an express warranty actionable under the Act, “[t]he DTPA does not define the term ‘warranty.’ Furthermore, the act does not create any warranties; therefore any warranty must be established independently of the act.” La Sara Grain, 673 S.W.2d at 565; accord Melody Home Mfg. Co. v. Barnes, S.W.2d, 30 Tex.Sup.Ct.J. 489, 492 (June 17, 1987). The most accessible definition of “express warranty” appears in Chapter 2 of the Texas Uniform Commercial Code (“the Code”). See Tex.Bus. & Com. Code Ann. § 2.313 (Tex. UCC) (Vernon 1968). Chapter 2 of the Code, however, governs only the sale of goods. Id. § 2.102. Under the DTPA," }, { "docid": "1589285", "title": "", "text": "distribution of groundwater or surface water. Vernon’s Tex.Code Ann., Water Code, § 36.015(b) (Supp.2004). . Docket no. 5 at 3-4, . Id. . Docket no. 8 at 7-9; docket no. 10 at 10-12. . Docket no. 1 at 23. Plaintiffs also allege that the General Manager of Springs Hill Water Co. is the Chairman of the Board of Directors of GCGCD. Id. at 24. . Docket no. 5 at 4-6. . Docket no. 8 at 9-10; docket no. 10 at 12-14. . Docket no. 1 at 26. . Docket no. 8 at 10. . Docket no. 5 at 6. . Docket no. 10 at 15. . Docket no. 5 at 6-8. . Docket no. 8 at 10. . 28 U.S.C. § 1356(c)(1), (2), and (4). . Docket no. 5 at 7. . Docket no. 5. . See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). . Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir.2000); Douglass v. United Serv. Auto. Ass’n, 79 F.3d 1415, 1428 (1996)." }, { "docid": "8541732", "title": "", "text": "Accordingly, we reverse the award of $2,000 in mandatory treble damages under section 17.50(b)(1) of the DTPA. We likewise reverse the award of $200,000, premised on a finding of mental anguish and violation of the DTPA. Only the contractual damages under the policy may be awarded. The judgment appealed is REVERSED and judgment in favor of State Farm is RENDERED. . There was more, including: (1) Thrash was in arrears in mortgage payment but the balance was only $3,500 leaving a very sizeable equity; (2) he had recently lost about $200,000 in bankruptcy; (3) his current marriage was in crisis due to financial strain; (4) he was facing retirement without any source of income; and (5) on the night of the fire the entire family was away from the house at a party planned several weeks in advance. .The DTPA defines \"knowingly\" as an \"actual awareness of the falsity, deception, or unfairness of the practice.” Tex.Bus. & Com.Code Ann. § 17.45. . Tex.Bus. & Com.Code § 17.50(b)(1) (Supp. 1993); Tex.Civ.Prac. & Rem.Code § 41.003(a)(3) (Supp. 1993). In his brief, Thrash claims that the court erred in not allowing him to recover exemplary damages and forcing him to elect among damage awards under the common law and the DTPA. Thrash has not filed a notice of appeal; we do not consider these points. F.R.A.P. 4(a)(3). See also Cyrak v. Lemon, 919 F.2d 320 (5th Cir. 1990). . The 1991 revisions to the Rules of Civil Procedure abolished the distinction between directed verdict and judgment notwithstanding the verdict. Both are now simply labeled judgment as a matter of law. Fed.R.Civ.P. 50. . Ayres v. Sears, Roebuck & Co., 789 F.2d 1173 (5th Cir.1986). . See Gross v. Black & Decker, Inc., 695 F.2d 858 (5th Cir.1983). . For a scholarly discussion of sufficiency review see Steven A. Childress & Martha S. Davis, Federal Standards of Review § 3.01 (2d ed. 1992). . Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 176 (5th Cir.1985). . 725 S.W.2d 165, 167 (Tex.1987). . 748 S.W.2d 210, 212-13 (Tex.1988). . Koral Indus., Inc. v. Security-Connecticut Life" } ]

[ { "docid": "13959987", "title": "", "text": "to absorb English instruction. Beyond the substantive courses, Hispanic students also receive instruction in the history and culture of their countries of origin, i. e., Puerto Rican children are taught the history and culture of Puerto Rico, children of Colombian parents are taught the history and culture of Colombia, etc. Only art, music, physical education, and other specialty subjects are taught exclusively in English. Specialty instructors relieve the bilingual teachers during such periods. The bilingual program segregates the Spanish speaking students from the rest of the student body. The children remain in the same classroom except for physical education and lunch. Yet, during lunch hour and physical education period, they tend to continue as the same identifiable Spanish speaking group. Moreover, students who have attained the level of proficiency in English which would permit learning in the English language are nevertheless retained in the program for the purpose of maintaining their Spanish cultural level. No student has been transferred from the bilingual program to the regular English curriculum in the history of Project Avelino. PLAN V Under Plan V, seven elementary schools in the district would offer an ESOL center run in substantially the same manner as under Project Avelino, and a Spanish basic skills room for remedial help and cultural instruction. Hispanic students in the bilingual program would spend the majority of the school day in the homeroom with English speaking students where substantive courses (i. e. reading, math, and social studies) would be taught in English. Non-English speaking students would also be required to attend the Spanish basic skills room for periods ranging from one-half hour to one and one-half hours depending upon the student’s English comprehension level. Bilingual teachers there would offer remedial help by explaining in Spanish the subject matter covered in the monolingual homeroom. Cross-cultural studies and basic language arts (/. e. Spanish language, literature and comprehension) would also be taught in the basic skills room. From the third grade up students would be instructed in the Puerto Rican cultural inheritance. The basic skills room is described as a potpourri of various teaching methods including" } ]

[ { "docid": "1608161", "title": "", "text": "district shall be a full-time program of instruction (1) in all subjects required by law or by the school district, which shall be given in the native language of the children of limited English speaking ability who are enrolled in the program, and in the English language; (2) in the comprehension, speaking, reading, and writing of the native language of the children of limited English-speaking ability who are enrolled in the program, and in the comprehension, speaking, reading, and writing of the English language; and (3) in the history and culture associated with the native language of the children of limited English-speaking ability who are enrolled in the program, and in the history and culture of the United States. Tex.Ed.Code Ann. § 21.454 (Vernon 1980 supp.). Administrative regulations issued by the TEA enumerate the instructional components of the bilingual program: (1) The basic concepts initiating the child into the school environment are taught in the language he brings from home. (2) Language development is provided in the child’s dominant language. (3) Language development is provided in the child’s second language. (4) Subject matter and concepts are taught in the child’s dominant language. (5) Subject matter and concepts are taught in the second language of the child. (6) Specific attention is given to develop in the child a positive identity with his cultural heritage, self-assurance, and confidence. Pl.-Int. Ex. 383, § 32.52.011. The state's recently-adopted plan for bilingual education thus requires that substantive instruction be provided in both Spanish (the dominant language) and English (the second lan guage), with the division in time spent on each dependent upon the particular student’s relative proficiency in both languages. Gov. Ex. D-13. Unfortunately, the monitoring conducted by the TEA throughout the state has revealed that these laudable guidelines are frequently ignored by local school districts. A few examples should suffice to demonstrate the wide gap between theory and practice in this field: • A TEA visit to Lockhart Independent School District in 1975 found that the bilingual program was conducted primarily in English. • A TEA visit to Aransas Pass Independent School District in" }, { "docid": "1608151", "title": "", "text": "by the time this case was tried, it must be treated as the state’s current response to its duty to eradicate the vestiges of past discrimination against Mexican-Americans and be evaluated on that basis. (2) Concept of Bilingual Education and Related Remedial Programs. Both the state’s existing education policies toward Mexican-American students and plaintiffs’ claims in this action focus on the use of bilingual instruction. An understanding of the concept of bilingual education is a prerequisite to evaluating the programs currently in operation throughout the state. A bilingual education program is defined by Congress in the “Bilingual Education Act”, 20 U.S.C.A. § 3221, et seq. (1980 supp.), as: a program of instruction, designed for children of limited English proficiency in elementary or secondary schools, in which, with respect to the years of study to which such program is applicable—(i) There is instruction given in, and study of, English and, to the extent necessary to allow a child to achieve competence in the English language, the native language of the child of limited English proficiency, and such instruction is given with appreciation for the cultural heritage of such children, and of other children in American society, and, with respect to elementary and secondary school instruction shall, to the extent necessary, be in all courses or subjects of study which will allow a child to progress effectively through the educational system. § 3223(a)(4)(A). It is stipulated that “[bjilingual-bicultural education is based on the widely recognized premise that the most effective way to teach children who speak a language other than English, the majority language, is through their mother tongue as a vehicle for instruction.” Pl.-Int. Ex. 409, # 1115. If the learning process is initiated in English, a language which the child cannot understand, the child will be likely to fail in his subjects in school and suffer permanent damage to his learning potential. Pl.-Int. Ex. 409, # 909. Providing bilingual instruction to Spanish-speaking children with limited proficiency in English enables them to learn reading, mathematics, and other basic cognitive subjects in a language they comprehend at the same time that their" }, { "docid": "22140933", "title": "", "text": "heavy fines because the legislature did not provide sufficient funding. These orders unquestionably imposed important restrictions on the legislature’s ability to set budget priorities. E Because the lower courts — like the dissent — misperceived both the nature of the obligation imposed by the EEOA and the breadth of the inquiry called for under Rule 60(b)(5), these cases must be remanded for a proper examination of at least four important factual and legal changes that may warrant the granting of relief from the judgment: the State’s adoption of a new ELL instructional methodology, Congress’ enactment of NCLB, structural and management reforms in Nogales, and increased overall education funding. 1 At the time of the District Court’s original declaratory judgment order, ELL instruction in Nogales was based primarily on “bilingual education,” which teaches core content areas in a student’s native language while providing English instruction in separate language classes. In November 2000, Arizona voters passed Proposition 203, which man dated statewide implementation of a “structured English immersion” (SEI) approach. See App. to Pet. for Cert. in No. 08-294, at 369a. Proposition 203 defines this methodology as follows: “‘Sheltered English immersion’ or ‘structured English immersion’ means an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language. . . . Although teachers may use a minimal amount of the child’s native language when necessary, no subject matter shall be taught in any language other than English, and children in this program learn to read and write solely in English.” Ariz. Rev. Stat. Ann. § 15-751(5) (West 2009). In HB 2064, the state legislature attended to the successful and uniform implementation of SEI in a variety of ways. It created an “Arizona English language learners task force” within the state department of education to “develop and adopt research based models of structured English immersion programs for use by school districts and charter schools.” §15-756.01(0). It required that all school districts and charter schools select one of the adopted SEI models, § 15-756.02(A), and" }, { "docid": "22023973", "title": "", "text": "amount of bilingual/bicultural education which was needed by the students of District 51 and in providing the amount of that education which they believed was needed. I am sure they did a better job than I could do. From what has been said, I think it apparent that in addition to the determination that there is no constitutional right to bilingual/bicultural education, there is no failure on the part of District 51 to comply with any federal statute or regulation. Lau v. Nichols (1973), 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1, is of no help to plaintiffs. There were 2800 Chinese school children who did not speak, understand, read or write English involved in Lau. As to 1800 of those children the school district took no steps to deal with the language deficiency. This was held to be in violation of an HEW regulation which required: “Where inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.” Justice Blackmun added: “Against the possibility that the Court’s judgment may be interpreted too broadly, I stress the fact that the children with whom we are concerned here number about 1,800. This is a very substantial group that is being deprived of any meaningful schooling because the children cannot understand the language of the classroom. We may only guess as to why they have had no exposure to English in their pre-school years. Earlier generations of American ethnic groups have overcome the language barrier by earnest parental endeavor or by the hard fact of being pushed out of the family or community nest and into the realities of broader experience. “I merely wish to make plain that when, in another case, we are concerned with a very few youngsters, or with just a single child who speaks only German or Polish or Spanish or any language other than English, I would not regard today’s decision," }, { "docid": "22023978", "title": "", "text": "of the State of Colorado is to encourage local school districts to develop bilingual skills and to assist in the transition of non-English-speaking students to English. The state legislature has established a comprehensive program for the education of children of migrant workers and has mandated the teaching of minority group history and culture in all public schools. Denver school authorities maintain a variety of programs for assistance of children who have learning difficulties because they come from non-English-speaking families. We believe that the district' court’s adoption of the Cardenas Plan would unjustifiably interfere with such stand and local attempts to deal with the myriad economic, social, and philosophical problem^ connected with the education of minority students.” Everything said by Chief Judge Lewis about the necessity for retaining local control of school systems where there are no constitutional infractions or infractions of federal statutes or regulations by school districts is emphatically applicable to this case. Colorado statutes and programs are as applicable to Mesa Valley School District 51 as they are to the Denver School District. District 51 takes full advantage of all available federal and state funds, and it also maintains a variety of programs to assist children who have learning difficulties, including children, if any, who have learning difficulties because of language deficiency. There exists no constitutional right to bilingual/bicultural education, and there has been no showing that inability to speak and understand the English language excludes more than a tiny handful [if that many] of national origin minority group children from effective participation in the educational program offered by District 51. However, there has been a showing that District 51 has taken and is taking affirmative steps to rectify any possible language deficiency to assure that its instructional program will be available to all students. Plaintiffs have no case for a claimed constitutional violation because they do not assert segregation and there is no constitutional right to bilingual/bicultural education. Plaintiffs have proven no case under the Lau-Serna doctrine. Left for relatively brief discussion, then, is plaintiffs’ claim of employment discrimination. I am confronted at the outset with the" }, { "docid": "102721", "title": "", "text": "§ 1; Const., art. I, § 1, eff. July 25, 1952. . § 5. [Qualifications of members of Legislative Assembly] No person shall be a member of the Legislative Assembly unless he is able to read and write the Spanish or English language and unless he is a citizen of the United States and of Puerto Rico and has resided in Puerto Rico at least two years immediately prior to the date of his election or appointment. No person shall be a member of the Senate who is not over thirty years of age, and no person shall be a member of the House of Representatives who is not over twenty-five years of age. . Public education in Puerto Rico is administered in Spanish. English is taught in public schools as a second language. However, there are a large number of private schools where education is either taught in Spanish with some emphasis on English, or is primarily taught in English. Traditionally, the private school sector has employed English-speaking teachers, such as Kathy Smothers, to teach a variety of subjects, including English as such, Science, and Mathematics. . The record fails to reflect why such a provisional license would permit an English-speaking teacher to work in the private and public school systems for five years while such a person would not qualify to work with a regular license for failure to master written Spanish. . The standard of review under Fed.R.Civ.P. 12(b)(6) and that under Fed.R.Civ.P. 56 are different. In a Rule 12(b)(6) setting, the court should grant a motion to dismiss for failure to state a claim when \"it appears to a certainty that the plaintiff would be unable to recover under any set of facts.” González-Bernal v. U.S., 907 F.2d 246, 248 (1st Cir.1990). The court must accept as true all material allegations and construe them in favor of the complaining party. International Paper Co. v. Jay, 928 F.2d 480, 482 (1st Cir.1991). The summary judgment standard is fact-specific. The motion must be granted if there is no conflict of material facts. Here, we have decided to apply" }, { "docid": "2684176", "title": "", "text": "outside the ambit of state action. 445 F.2d 990, 1004-05. Plaintiffs submitted this issue to the Supreme Court, but the Court did not reach it. See 413 U.S. 189, 214 n. 18, 93 S.Ct. 2686. . 1973 Colo.Rev.Stat. § 22-1-103. . Id. § 22-23-101 et seq. . Id. § 22-1-104. . The School Board operates a Diagnostic Teaching Center designed to facilitate in non-English-speaking students “maximum growth of the English language for communication and verbal expression and to maintain pride in [their] language and culture.” The Board also maintains an early childhood English program, and bilingual education programs in certain elementary and junior high schools. . Plaintiffs attempt to support adoption of the Cardenas Plan with allegations that the School Board has violated section 601 with respect to non-English-speaking students. We note that in the 1973-74 school year, Denver school authorities identified 344 students in the system with language difficulties arising from their Spanish-speaking backgrounds. School authorities determined that 251 of these students needed special help in acquiring language skills necessary to function satisfactorily in school. A number of programs were directed to the needs of these students. On the basis of these facts and after reviewing the record, we are unable to find any support for a violation of section 601. Even if such a violation were supported by the record, moreover, we believe the Cardenas Plan would, for reasons we have indicated, overstep the scope of a remedy properly directed to the violation. . Forty-five percent of the system’s black elementary teachers were assigned to the seventeen elementary schools with Anglo enrollments of less than 20%. Approximately 68% of the system’s Hispano elementary school teachers were assigned to the same schools. Higher percentages of the system’s minority junior high and high school teachers were assigned to predominantly minority schools. . In 1969, 7.06% of the system’s teachers were black; 2.16% were Hispano. In 1973, 8.83% were black and 3.6% were Hispano. . The District’s proposal would close the following elementary schools: Westwood, Sherman, Boulevard, Crofton, Ebert, Moore, Stevens, College View, Emerson, Ellsworth, and Elyria. All of these but" }, { "docid": "8024634", "title": "", "text": "speaking students in grades K-3 provides significantly less attention to these other areas than does the curriculum used in the English language dominant classrooms. The bilingual education manual developed by the district outlines the basic classroom sched ules for both Spanish dominant classrooms and English dominant classrooms. These schedules indicate that students in the Spanish language dominant classrooms spend almost exactly the same amount of classroom time on math, science and social studies as do their counterparts in the predominantly English speaking classrooms. The extra time that Spanish language dominant children spend on language development is drawn almost entirely from what might fairly be deemed the “extras” rather than the basic skills components of the elementary school curriculum, e. g., naps, music, creative writing and physical education. Even if we accept this allegation as true, however, we do not think that a school system which provides limited English speaking students with a curriculum, during the early part of their school career, which has, as its primary objective, the development of literacy in English, has failed to fulfill its obligations under § 1703(f), even if the result of such a program is an interim sacrifice of learning in other areas during this period. The language of § 1703(f) speaks in terms of taking action “to overcome language barriers” which impede the “equal participation\" of limited English speaking children in the regular instructional program. We believe the statute clearly contemplates that provision of a program placing primary emphasis on the development of English language skills would constitute “appropriate action.” Limited English speaking students entering school face a task not encountered by students who are already proficient in English. Since the number of hours in any school day is limited, some of the time which limited English speaking children will spend learning English may be devoted to other subjects by students who entered school already proficient in English. In order to be able ultimately to participate equally with the students who entered school with an English language background, the limited English speaking students will have to acquire both English language proficiency comparable to" }, { "docid": "1608150", "title": "", "text": "eliminated mandatory bilingual programs in grades four, five, and six. Bilingual instruction in the fourth and fifth grades was made optional for school districts, with supplemental funding to be provided by the state. No state funds were to be available for bilingual education in grades six through twelve. The amendments enacted in 1975, together with the 1973 Bilingual Education Act, remain in effect, unchanged, to this date. During the course of this litigation, the State Board of Education approved a new State Plan for Bilingual Education which embodies the provisions of the statute. Gov. Ex. D-13. The plan, adopted on November 11, 1978, contains detailed regulations concerning the identification of limited English-speaking ability students, the components of bilingual programs, and procedures for transferring a child from bilingual instruction into the regular curriculum. The new plan also requires school districts to provide special English language development programs to students in grades one through twelve who have limited English-speaking ability but are not receiving bilingual instruction. Although this \"plan had not been fully implemented throughout Texas schools by the time this case was tried, it must be treated as the state’s current response to its duty to eradicate the vestiges of past discrimination against Mexican-Americans and be evaluated on that basis. (2) Concept of Bilingual Education and Related Remedial Programs. Both the state’s existing education policies toward Mexican-American students and plaintiffs’ claims in this action focus on the use of bilingual instruction. An understanding of the concept of bilingual education is a prerequisite to evaluating the programs currently in operation throughout the state. A bilingual education program is defined by Congress in the “Bilingual Education Act”, 20 U.S.C.A. § 3221, et seq. (1980 supp.), as: a program of instruction, designed for children of limited English proficiency in elementary or secondary schools, in which, with respect to the years of study to which such program is applicable—(i) There is instruction given in, and study of, English and, to the extent necessary to allow a child to achieve competence in the English language, the native language of the child of limited English proficiency, and" }, { "docid": "13959998", "title": "", "text": "Opportunity Act of 1974, 20 U.S.C. § 1703, Section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, the teaching of Lau, and the suggestions of the Lau guidelines promulgated for the purpose of demonstrating methods of compliance with statutory and decisional requirements. Plan V is unacceptable. While integration is encouraged, there is no assurance that language deficient children in the upper grades will be identified. If they are, there is the continued threat of insufficient remedial assistance. For if a child cannot comprehend principles of math or science taught in the English homeroom, he will not be able to explain his or her problem to the bilingual teacher in the Spanish basic skills room who is expected to provide remedial help. Moreover, children continually in need of remedial assistance, who might spend more time in the basic skills room than they are scheduled for, run the risk of missing planned instruction thus further retarding their educational progress. “No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by— (a) the deliberate segregation by an educational agency of students on the basis of race, color, or national origin among or within schools.” Disposition Brentwood is directed to submit a plan in compliance with the Lau Guidelines. The requirements permit latitude in organizing a bilingual program. The task is not an easy one. The goal is instruction by competent bilingual teachers in the subject matter of the curriculum while at the same time teaching non-English-speaking children the English language. The time limitation of the school day is an obstacle that may be overcome by supplementary programs designed to achieve both goals. Extra curricular activities conducted after the school day or during the summer period involving both English and non-English-speaking children comes to mind. Educating the parents of non-English-speaking children of the need to acquire proficiency in the English language is a program that might be incorporated into the plan. The plan must contain more specific methods for identifying on admission those children who are deficient in" }, { "docid": "13959985", "title": "", "text": "education with the reduced teaching staff. Plan V was to become operative with the commencement of the school year in September, 1977. The court issued a temporary restraining order however, on August 22, 1977, directing a continuance of the bilingual program as it existed during school year 1976-1977. The issues were tried to the court without a jury. The court finds as follows: The Brentwood school district (elementary and high school) has a student enrollment of about 19,000. It has a Hispanic student population of about 3,700. The elementary system has twelve schools with a student enrollment of about 10,000 including approximately 2,000 Hispanic students. A bilingual educational program has been offered for the past five years which is supplemented by an ESOL (English For Speakers of Other languages) program. PROJECT AVELINO The bilingual educational program started in the school year beginning in September, 1973, with the kindergarten class and first grade. In each successive year the program has expanded into the next grade, so that at the present time the bilingual program is offered from kindergarten to the fifth grade. It is expected that the program will continue to the sixth grade. Each year approximately 100 children enter the bilingual program as they enroll in kindergarten, while some students enroll in grades 1 and 2. Approximately 460 children currently participate, in Project Avelino. Under the program, which is offered to those whose dominant or exclusive language is Spanish, Hispanic students in kindergarten and the first grade are taught the subject matter of the curriculum in Spanish, while at the same time they are exposed to some English. As the students progress from year to year, the percentage use of English increases while the use of Spanish decreases. The increasing emphasis on English speaking in each successive year is expected to produce a level of language proficiency such that by the time the student reaches the sixth grade, all courses can be taught entirely in English. A bilingual teacher and aide teach all substantive courses, and give individual attention to those students within the class who have a greater capacity" }, { "docid": "1608163", "title": "", "text": "1977 found that no substantive courses within the bilingual program were being taught in Spanish. • In 1977, the North Forest Independent School District’s bilingual program offered no instruction in Spanish language or reading. • In 1979, the TEA reported that there was no teaching of substantive content in Spanish in the Laredo Independent School District. • A 1978 TEA monitoring report found very little native language instruction in the Fort Worth Independent School District bilingual program. Defendants stipulated to the existence of these and similar deficiencies in local bilingual programs in at least twenty-five additional school districts throughout the state. Pl.-Int. Ex. 409, # 801-809, 1207-1234. These districts are failing to provide the minimum level of bilingual instruction required by state law. As a result, many of the state’s Mexican-American children entitled to bilingual education are not receiving the compensatory programs they need to keep up with their Anglo counterparts. (b) Program Coverage. A far more serious weakness in the state’s existing bilingual program is the limited scope of its coverage. Bilingual instruction is required only in kindergarten through grade three, and only in those school districts with twenty or more Spanish-speaking students of limited English proficiency in a single grade. Some state funding is provided for optional bilingual instruction in grades four and five. No state assistance of any kind is available for bilingual programs in grades six through twelve which, as a practical matter, precludes any such programs from being offered in the middle and upper grades. There was considerable dispute at trial over the exact number of limited English proficiency students in the Texas public education system, but all parties agreed that a large number of these children were not being provided with bilingual instruction under current state policy. A report issued by the TEA in 1979 indicated that 198,613 children of limited English proficiency had been identified, statewide, in grades kindergarten through twelve, of whom 89,600 (about forty percent) were not in bilingual programs. Pl.-Int. Ex. 406. Fewer than half of the 19,622 identified children of limited English proficiency in grades four and five (where" }, { "docid": "18899224", "title": "", "text": "mainstream’ and thus, the least amenable to the values and teachings of the school M. L. Goldberg, “Factors Affecting Educational Attainment In Depressed Urban Areas,” in A. H. Passow, M. L. Goldberg, A. J. Tannenbaum, Education of the Disadvantaged, A Book of Readings, 49 (1967) (citations omitted). See also, M. Deutsch, “Minority Groups and Class Status As Related to Social and Personality Factors in Scholastic Achievement,” in M. Deutsch, The Disadvantaged Child, Studies of the Social Environment and Learning Process, 89, 102-103 (1967). This difference in style and even in language between lower and dominant classes is a worldwide phenomenon creating serious teaching problems. See Hart v. Community School Board of Education, N. Y. School District # 21, 383 F.Supp. 699, 746-47 (E.D. N. Y. 1974), aff’d, 512 F.2d 37 (2d Cir. 1975); J. Kandell, “Dutch School Uses Working-Class Speech to Help Pupils,” N.Y. Times, May 9,1978, p. 2, col. 3. Cf. Martin Luther King Junior Elementary School Children v. The Michigan Board of Education, 451 F.Supp. 1324, 1328-1330 (E.D.Mich. 1978) (students with only “Black English” background may prove violation of equal education opportunity guaranteed by 20 U.S.C. § 1703(f), imposing responsibility on educational agencies to overcome language barriers where equal participation by students in instructional programs is impeded). The pattern of Black family life has been cited as contributing further to these children’s problems in school. . the lower-class Negro child entering school often has had no experience with a successful male model or thereby with the corresponding psychological framework in which effort can result in at least the possibility of achievement. Yet the value system of the school and of the learning system is predicated on the assumption that effort will result in achievement. M. Deutsch, “The Disadvantaged and the Learning Process,” in M. Deutsch, The Disadvantaged Child, Studies of the Social Environment and the Learning Process, 39, 43 (1967). Sociologist Dr. Kenneth B. Clark has explored the existence of self-hatred among Black children. This syndrome, present among children of any group whose parents occupy inferior social, economic and educational status, may be particularly acute among some Blacks," }, { "docid": "1608152", "title": "", "text": "such instruction is given with appreciation for the cultural heritage of such children, and of other children in American society, and, with respect to elementary and secondary school instruction shall, to the extent necessary, be in all courses or subjects of study which will allow a child to progress effectively through the educational system. § 3223(a)(4)(A). It is stipulated that “[bjilingual-bicultural education is based on the widely recognized premise that the most effective way to teach children who speak a language other than English, the majority language, is through their mother tongue as a vehicle for instruction.” Pl.-Int. Ex. 409, # 1115. If the learning process is initiated in English, a language which the child cannot understand, the child will be likely to fail in his subjects in school and suffer permanent damage to his learning potential. Pl.-Int. Ex. 409, # 909. Providing bilingual instruction to Spanish-speaking children with limited proficiency in English enables them to learn reading, mathematics, and other basic cognitive subjects in a language they comprehend at the same time that their skills in English are being developed. Dr. Courtney Cazden, Professor of Child Development and Language at Harvard University, articulated the concept more fully: “The theory is a very simple one and straightforward one, that children must be taught in a language that they understand, and that is the only possible kind of equal education.” TR 114. Dr. Cazden expressed the view that reading, “the foundation of all future education”, must be introduced in the child’s native language. TR 115. As she explained: [I]f children learn to read in a language that they know, then they are facing one task at that time, namely figuring out the written system; but if a teacher attempts to teach a child to read in an oral language that is not familiar, then the children face the double task of trying to figure out the written system, but even if they figure out and pronounce a word it has no meaning so that is clearly and unequal educational system. TR 119. While bilingual education in the earliest grades is necessary" }, { "docid": "22023957", "title": "", "text": "He said that language problems were not the cause for the slight differences in achievement, and he pointed out that nationally, Chícanos score about three-fourths of a standard deviation below the national norm, while in Grand Junction, the majority of Chícanos in the six elementary grades score at or above the national norm. The problem then, is less severe in Grand Junction than it is nationally. I am unconvinced that any achievement problems encountered by Mexican-American students in District 51 are attributable to language deficiencies or language problems. Not only do I think that defendants’ experts are the more persuasive, but the testimony of plaintiffs’ own witnesses make plaintiffs’ position unacceptable and untenable to me. In the first place, no named plaintiff demonstrated a proficiency in Spanish superior to that same student’s proficiency in English. Children raised in the same home have no consistency in their academic achievement, yet they were all exposed to the same language and cultural environment in the home. For example, Becky Trujillo isn’t doing very well in school, but one of her brothers did very well. Plaintiffs’ whole case grounds on the argument that when Spanish is spoken in the home, the child won’t do well in school if the instruction is in English. i It seems to me that this position is difficult to defend under the testimony of Dr. Rolf Kjolseth, one of plaintiffs’ experts. He has two children who attend public schools taught in English. Although Dr. Kjolseth’s native tongue is English, he and his wife make a conscious effort to speak only Spanish in the home. He testified: “Q. Doctor, how many languages do you speak? “A. Four. English, which is my mother tongue, Spanish, French and German. I might add, if I may, that I never learned one in school . “Q. What language do you speak at home? “A. Spanish exclusively . “Q. Are your children monolingual in Spanish? “A. No, no, both children are completely bilingual. It's exclusively Spanish which is spoken at home, but in almost all of the other areas of social life it’s English that" }, { "docid": "244591", "title": "", "text": "or any child sixteen years of age who receives approval of the district superintendent, may enroll in a trade or business school. Id. Attendance at either public day school or a trade or business school satisfies the mandate that \"every parent, guardian, or other person having control or charge of any child or children of compulsory school age is required to send such child or children to a day school in which the subjects and activities prescribed by the standards of the State Board of Education are taught in the English language.” Id. . A child may satisfy the compulsory attendance requirement by attending \"an accredited or licensed private school,” 22 Pa.Code § 11.32 (2008), \"in which the subjects and activities prescribed by the standards of the State Board of Education are taught in the English language.” 24 Pa. Stat. Ann. § 13-1327(a). \"The certificate of any principal or teacher of a private school, or of any institution ...” must \"set[ ] forth that the work of said school is in compliance with the provisions of this act.” Id. Also, regular daily instruction in the English language by a properly qualified private tutor satisfies the compulsory attendance requirement. Id. The Pennsylvania Administrative Code enumerates minimum hours of instruction and the required subjects at both the elementary and secondary school levels. 22 Pa.Code § 11.31 (2008). . A child may enroll in a day school \"operated by a bona fide church or other religious body.” 24 Pa. Stat. Ann. § 13-1327(b). The school must meet minimum standards for hours of instruction and teach the subjects enumerated in the statute. See id. (\"[A] minimum of one hundred eighty (180) days of instruction or nine hundred (900) hours of instruction per year at the elementary level or nine hundred ninety (990) hours per year of instruction at the secondary level ....”); id. § 13 — 1327(b)(1) (requiring at the elementary school level, the following courses: \"English, to include spelling, reading and writing; arithmetic; science; geography; history of the United States and Pennsylvania; civics; safety education, including regular and continuous instruction in the dangers" }, { "docid": "1608160", "title": "", "text": "to the importance of teaching basic cognitive skills in a child’s native language. Pl.-Int. Ex. 409, # 909, 1115. The principle issue which divides the parties is whether the specific program designed and implemented by defendants is adequate to eliminate the vestiges of widespread discrimination against Mexican-Americans described above. In order to resolve that issue, a detailed examination of the state’s compensatory education programs must be undertaken. (a) Program Content. As noted above, the state of Texas currently mandates bilingual instruction in kindergarten through third grade for children of limited English proficiency, if at least twenty such students sharing a common native language are at the same grade level within a single school district. On paper, the bilingual program to be accorded those students who qualify contains the basic elements set forth in the federal Bilingual Education Act, 20 U.S.C.A. § 3221, et seq. (1980 supp.), and explicated in the documentary materials received in evidence. The state’s bilingual education statute describes the required program as follows: (a) The bilingual education program established by a school district shall be a full-time program of instruction (1) in all subjects required by law or by the school district, which shall be given in the native language of the children of limited English speaking ability who are enrolled in the program, and in the English language; (2) in the comprehension, speaking, reading, and writing of the native language of the children of limited English-speaking ability who are enrolled in the program, and in the comprehension, speaking, reading, and writing of the English language; and (3) in the history and culture associated with the native language of the children of limited English-speaking ability who are enrolled in the program, and in the history and culture of the United States. Tex.Ed.Code Ann. § 21.454 (Vernon 1980 supp.). Administrative regulations issued by the TEA enumerate the instructional components of the bilingual program: (1) The basic concepts initiating the child into the school environment are taught in the language he brings from home. (2) Language development is provided in the child’s dominant language. (3) Language development is provided" }, { "docid": "2684175", "title": "", "text": ".....77.3% Garden Place .... .....83.7% . The district court stated: [M]eaningful desegregation must be accompanied by some appropriate alterations of existing educational programs in order to adequately deal with new problems which will arise in the operation of desegregation rather than segregated schools. 380 F.Supp. at 695. . In 1970, the district court examined 15 predominantly minority schools in Denver and concluded: The evidence in the case at bar establishes . that an equal educational opportunity is not being provided at the subject segregated schools . ... Many factors contribute to the inferior status of these schools, but the predominant one appears to be the enforced isolation imposed in the name of neighborhood schools and housing patterns. 313 F.Supp. 61, 83. The court held that the maintenance of inferior segregated schools violated the rights of students to equal protection of the laws, irrespective of whether the segregated conditions resulted from state action. Id. This court reversed the district court on the ground that the federal courts are powerless to resolve educational difficulties arising from circumstances outside the ambit of state action. 445 F.2d 990, 1004-05. Plaintiffs submitted this issue to the Supreme Court, but the Court did not reach it. See 413 U.S. 189, 214 n. 18, 93 S.Ct. 2686. . 1973 Colo.Rev.Stat. § 22-1-103. . Id. § 22-23-101 et seq. . Id. § 22-1-104. . The School Board operates a Diagnostic Teaching Center designed to facilitate in non-English-speaking students “maximum growth of the English language for communication and verbal expression and to maintain pride in [their] language and culture.” The Board also maintains an early childhood English program, and bilingual education programs in certain elementary and junior high schools. . Plaintiffs attempt to support adoption of the Cardenas Plan with allegations that the School Board has violated section 601 with respect to non-English-speaking students. We note that in the 1973-74 school year, Denver school authorities identified 344 students in the system with language difficulties arising from their Spanish-speaking backgrounds. School authorities determined that 251 of these students needed special help in acquiring language skills necessary to function satisfactorily in" }, { "docid": "2684153", "title": "", "text": "conduct. Rather the court determined that since “many elementary school Chicano children are expected ... to acquire normal basic learning skills which are taught through the medium of [an] unfamiliar language,” a meaningful desegregation plan must provide for the transition of Spanish-speaking children to the English language. 380 F.Supp. at 695. But the court’s adoption of the Cardenas Plan, in our view, goes well beyond helping Hispano school children to reach the proficiency in English necessary to learn other basic subjects. Instead of merely removing obstacles to effective desegregation, the court’s order would impose upon school authorities a pervasive and detailed system for the education of minority children. We believe this goes too far. Other considerations lead us to the same conclusion. Direct local control over decisions vitally affecting the education of children “has long been thought essential both to the maintenance of community concern and support for public schools and to the quality of the educational process.” Milliken v. Bradley, 418 U.S. 717, 741, 742, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069; Wright v. Council of City of Emporia, 407 U.S. at 451, 469, 92 S.Ct. 2196, 33 L.Ed.2d 51. Local control permits citizen participation in the formulation of school policy and encourages innovation to meet particular local needs. Educational policy, moreover, is an area in which the courts’ “lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at state and local levels.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16. The policy of the state of Colorado is to encourage local school districts to develop bilingual skills and to assist in the transition of non-English-speaking students to English. The state legislature has established a comprehensive program for the education of children of migrant workers and has mandated the teaching of minority group history and culture in all public schools. Denver school authorities maintain a variety of programs for assistance of children who have learning difficulties because they come from non-English-speaking families. We believe that the district court’s adoption of the Cardenas Plan" }, { "docid": "6414037", "title": "", "text": "that the original of the writings shall be made available for examination or copying by other parties at reasonable times and places. The chart here falls well within the authority of F.R.E. 1006, and there is no claim made by plaintiff that the underlying data was not at any time made available for her to study. Therefore, there is no basis for plaintiff’s claim that the Court erred in admitting this chart, and the motion for new trial will be denied. An order in conformity with this opinion may be presented. . The prior suit, known as the “Black English” case, was Martin Luther King, Jr. Elementary School Children v. Ann Arbor School District, 473 F.Supp. 1371 (1979). In this case black children who were students at an elementary school brought an action claiming that they spoke “black vernacular” which resulted in impediment to their equal participation in the instructional programs, and that the school had not taken appropriate action to overcome the barrier. The Court held that the school had not taken appropriate action to assure the children’s equal participation in the instructional programs and ordered the school to take steps to help teachers recognize the home language of students and to use that knowledge in their attempts to teach reading skills and standard English. . Plaintiff contends that neither she nor her husband should be liable for fees and costs, and that any such relief granted to defendants must be levied against the Legal Services Corporation, whose recipient grantee employed her attorney full time at the time this action was commenced. This argument misconceives the nature of attorney fees and costs. Attorney’s fees and costs are not assessed against the opposing attorney but are assessed against the parties. Therefore the fees and costs assessed in this case are assessed against the plaintiff, Benita Kaimowitz." } ]

[ { "docid": "4537784", "title": "", "text": "its comprehensive terms. That the words “or any other person” are intended to include all persons committing the acts described is, as we think, quite plain. To be within the statute it is essential that the act of collecting the purchase price be done “in connection with the transportation of” the liquor. The statute does not say '“in the transportation,” but .“in connection with” it. Transportation, as this court often has said, is not completed until the shipment arrives at the point of destination and is there delivered. Rhodes v. Iowa, 170 U. S. 412, 415, 420; Vance v. Vandercook Co., 170 U. S. 438, 451; Louisville & Nashville R. R. Co. v. Cook Brewing Co., 223 U. S. 70, 82; Kirmeyer v. Kansas, 236 U. S. 568, 572; Rosenberger v. Pacific Express Co., 241 U. S. 48, 50. What Cooley did, while not part of the transportation, was closely connected with it. He was at the point of destination and held the bill of lading, which carried with it control over the delivery. Conforming to his principal’s instructions he required that the purchase price be paid before the bill of lading was passed to the vendee. The money was paid under that requirement ánd he then turned over the bill of lading. A delivery of the shipment ■ followed and that completed the transportation. Had the carrier done what he did all would agree that the requisite connection was present. As the true test of its presence is the relation of the collection, rather than the collector, to the transportation, it would seem to be equally present here. We conclude that § 239 reaches and embraces acts done by an agent such as Cooley was. The ruling on the right of a principal to recover from an agent money received by the latter in carrying out ah arrangement between them which involved the violation of a criminal statute turned on a question of local law and cannot be reexamined here. Judgment affirmed." } ]

[ { "docid": "11095978", "title": "", "text": "infringement. This conclusion finds support in my previous opinion, as well as in the opinions of other judges who have had occasion to examine the art and consider Smith’s patent. In Buckeye Incubator Co. v. Wolf (D. C.) 291 F. 255, describing Smith’s hatching method, I used this language: “The principle of operation and the hatching method for which this apparatus is designed consist in forcing mechanically a draft of heated air downwardly through the central corridor, where it passes below the bottom of the partition or curtains and ascends through the column of egg trays to the exit at the top of the respective egg chambers. Part of the foul air is permitted to escape through the air exits, and additional fresh air is drawn in through the air inlets and returned through the central corridor and the egg chambers. A cycle of forced circulation of air through definite channels, it is said, is thereby obtained.” As already said, I should not feel bound thereby, if my present opinion were otherwise, for the reason that no question of infringement or validity turned on any close construction of the patent claims. However, this language was not used inadvisedly. In Buckeye Incubator Co. v. Petersime, District Judge Hiekenlooper had occasion to consider closely the construction of these patent claims, and held that they were not infringed by a device or hatching method similar in its principle of operation to defendant’s. That case is now pending on appeal. In Buckeye Incubator Co. v. Cooley, supra, Judge Woolley, in discussing the prior art, uses this language: “More important still, there Was no arrangement for establishing and regulating currents of heated air and, similarly, no provision for obtaining uniformity of temperature other than that initially provided by the heating means. Moreover it should be noted that the heated air, like the wind, would go where it listeth, and, accordingly, it acted as it pleased.” In the present ease, at the hearing and before seeing Judge Woolley’s opinion, a similar expression was used by me in describing the operation of defendant’s apparatus. Judge Woolley, in" }, { "docid": "9542168", "title": "", "text": "the tax, and to that end it prohibits those acts which might possibly lead to an evasion of the payment of the tax due upon any taxable article. When, therefore, in the course of the many provisions for collecting the tax and for preventing any evasion of its due payment the statute prohibits the putting of anything else in the barrel or package, etc., after it has been branded or stamped, it seems to us the natural meaning of the language limits the addition to anything of a taxable nature and does not include an article which is not taxable, is wholly harmless and added for a purpose not illegal or in itself improper. .We concur, of course, in the rule which has been uphfeld in this- court,' that a statute like this one, for the raising of a revenue, even when accompanied by provisions of a very highly penal nature, is still to be construed as a whole and in a fair and reasonable mariner, and not strictly in favor of a defendant. United States v. Stowell, 133 U. S. 1. Construed under this rule, we are unable to conclude that the section applies to this case. The language used, when considered in connection with the whole statute, is not so plain as to preclude the application of those general rules, of construction of statutes which frequently interpret language in accordance with what seems to be the real meaning of the legislature, although not in exact and, literal obedience to the wording of the •law. We do not think that the opportunities for perpetrating a fraud upon the revenue are in any way extended by reason of the addition in question. A liquor dealer having a properly stamped ,barrel in his possession might violate the law and empty the cbntents of the barrel without- destroying the stamps, and might then dispose of the barrel, so stamped, to an illicit distiller, who might then endeavor to perpetrate a fraud upon the revenue by filling the barrel with non-tax-paid spirits, but we do not see that the prior addition, as mentioned," }, { "docid": "22383815", "title": "", "text": "legislative will. Compare Rein v. Lane, L. R. 2 Q. B. Cases 144, 151. The intention being thus disclosed, it is enough that the word or clause is reasonably susceptible of a meaning consonant therewith, whatever might be its meaning in another and different connection. We are not at liberty to reject the meaning so established and adopt another lying outside the intention of the legislature, simply because the latter would release the taxpayer or bear less heavily against him. To do so would be not to resolve a doubt in his favor, but to say that the statute does not mean what it means. “ The rule of strict construction is not violated by permitting the words of a statute to have their full meaning, or the more extended of two meanings. The words are not to be bent one way or the other, but to be taken in the sense which will best manifest the legislative intent. United States v. Hartwell, 6 Wall. 385, 396; United States v. Corbett, 215 U. S. 233, 242.” Sacramento Nav. Co. v. Salz, 273 U. S. 326, 329. The rule of strict construction applies to penal laws, but such laws are not to be construed so strictly as to defeat the obvious intention of the legislature; or so applied as to. narrow the words of the statute to the exclusion of cases which those words, in the sense that the legislature has obviously used them, would comprehend. United States v. Wiltberger, 5 Wheat. 76, 95. That view, expressed by Chief Justice Marshall, has since been frequently followed by this court. See, for example, American Fur Co. v. United States, 2 Pet. 358, 367; United States v. Morris, 14 Pet. 464, 475; United States v. Hartwell, supra, 395-6; Donnelley v. United States, 276 U. S. 505, 512. Judgment reversed. As, for example, it did in the Act of March 3, 1919, § 4, c. 100, 40 Stat. 1309, 1311." }, { "docid": "22637891", "title": "", "text": "tend toward strict construet ion, and some have seemed to differentiate according to the use being made of the statute, inclining to a strict construction when a criminal penalty is being imposed and a more liberal one when civil remedies are being applied. But this Court, as early as 1820, speaking through Chief Justice Marshall, said: “The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. ... It is said, that notwithstanding this rule, the intention of the law maker must govern in the construction of penal, as well as other statutes. This is true. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this, that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend.” United States v. Wiltberger, 5 Wheat. 76, 95. This rule in substance was repeated in United States v. Hartwell, 6 Wall. 385, 396, which said also: “The rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings, as the wider popular instead of the more narrow technical one; but the words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent.” The principle has been followed in United States v. Corbett, 215 U. S. 233, 242; Donnelley v. United States, 276 U. S. 505, 512; United States v. Giles, 300 U. S. 41, 48. In the present case we do nothing to the words of the Act; we merely accept them. It would be necessary in any case for any kind of relief to prove that documents" }, { "docid": "21326340", "title": "", "text": "134 U. S. 624, 628, 10 S. Ct. 625, 33 L. Ed. 1080; Todd v. United States, supra, 158 U. S. 278, page 282, 15 S. Ct. 889, 39 L. Ed. 982; Fasulo v. United States, 272 U. S. 620, 629, 47 S. Ct. 200, 71 L. Ed. 443; Donnelley v. United States, supra, 276 U. S. 505, page 511, 48 S. Ct. 400, 72 L. Ed. 676; United States v. Gradwell et al., 243 U. S. 476, 485, 37 S. Ct. 407, 61 L. Ed. 857; United States v. Bathgate, et al., 246 U. S. 220, 225, 38 S. Ct. 269, 62 L. Ed. 676; Speeter v. United States (C. C. A. 8) 42 F.(2d) 937, 940, 941. But the rule that a penal statute is to be strictly construed in favor of persons accused, is not violated by allowing the language of the statute to have its full meaning, where that construction supports the policy and purposes of the enactment. United States v. Hartwell, 6 Wall. 385, 395, 396, 18 L. Ed. 830; United States v. Wiltberger, 5 Wheat. 76, 95, 5 L. Ed. 37; Donnelley v. United States, supra, 276 U. S. 505, page 518, 48 S. Ct. 400, 72 L. Ed. 676. And when a construction contended for unduly restrains the language of a statute and is contrary to the purposes of the act and the policy of Congress, it will not be sustained. Donnelley v. United States, supra, 276 U. S. 505, page 518, 48 S. Ct. 400, 72 L. Ed. 676. The purpose and policy of the enactment here involved is obvious. It is to prevent miscarriages of justice through the accepting of bribes by material witnesses for the suppression or the changing of their evidence in cases, hearings, and proceedings in the courts of the United States, as well as before committing magistrates and other officers authorized to hear evidence and take-testimony. There is every reason why the courts should not unduly limit or restrict the language of the statute. Under the defendants’ interpretation of this statute, a witness before a United States" }, { "docid": "11053619", "title": "", "text": "and see United States v. Barton, 2 Cir., 134 F.2d 484. Compare Gebardi v. United States, 287 U.S. 112, 123, 53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370. For cases with somewhat similar fact situations where court held violation of section 399 see Blackstock v. United States, 8 Cir., 261 E. 150, certiorari denied 254 U.S. 634, 41 S.Ct. 8, 65 L.Ed. 449; Gillette v. United States, 8 Cir., 236 F. 215; United States v. Barton, 2 Cir., 134 F.2d 484; Simpson v. United States, 9 Cir., 245 F. 278, 280. SANBORN, Circuit Judge (dissenting). Since the evidence shows that the appellant knowingly brought about the return of Dora Thomas from Minneapolis, Minnesota, to Fargo, North Dakota, for the purpose of prostitution, and therefore caused her to be transported in interstate commerce, I think the conviction of the appellant under section 2 of the White Slave Traffic Act should be sustained. The Supreme Court has held that under that section “transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts pun ished, when done with a purpose which is immoral within the meaning of the law.” Gebardi v. United States, 287 U.S. 112, 118, 53 S.Ct. 35, 36, 77 L.Ed. 206, 84 A.L. R. 370. The language of section 2 of the Act should be given its full meaning, since that construction supports the policy and purposes of the enactment. Donnelley v. United States, 276 U.S. 505, 512, 48 S.Ct. 400, 72 L.Ed. 676; Wilson v. United States, 8 Cir., 77 F.2d 236, 239, 240. The verb “cause” as used in section 2 is entitled to the meaning ascribed to it by the trial court. This is indicated by the decisions of this Court in Huffman v. United States, 8 Cir., 259 F. 35, 38, and Demolli v. United States, 144 F. 363, 366, 6 L.R.A.,N.S., 424, 7 Ann.Cas. 121; by the decision of the Circuit Court of Appeals of the Second Circuit in Reed v. United States, 2 Cir.," }, { "docid": "9337881", "title": "", "text": "statement of what is and what is not agricultural labor which we are now asked to apply retroactively. Congress itself said it was not to apply until January 1, 1940. The report of the Committee of the House which handled the bill, and that of the Senate, both speak of the “old law”, stating it as Regulation 90 stated it, with evident recognition of the validity of the regulation, and state the changes that were intended; and the Conference Report emphasizes that the changes were to take effect only at a future date, so as not to affect pending litigation. We think the amendment of 1939 cannot be used to guide us; that the simple words “agricultural labor” must stand as the sole statutory language; and that we should not overturn the interpretation of them in Regulation 90, Art. 206, by which we suppose taxpayers generally have settled their taxes. The Regulation is now dead, and to overturn it for the years prior to 1940, contrary to the will of Congress, would create unjust differences between employers who paid and those who did not. We approve the district court’s conclusion that the services which Fosgate Company rendered in cultivating crops of fruit for others were rendered on a farm in connection with the cultivation of the soil, and were under Art. 206(a) agricultural labor, although the owner of the crops did not directly hire the laborers, but dealt with the Company, which in turn put the laborers to work. The labor was done in cultivating the soil, the literal etymological meaning of agriculture. The Company was entitled to recover back the taxes assessed with reference to these’ wages. Service in gathering crops and transporting them to market would ordinarily be in connection with harvesting and agricultural, because usually performed by or for the person who produces them. But touching crops that have to be processed before marketing, in recent years businesses have arisen that are more nearly mercantile and manufacturing than agricultural. Such businesses have increasingly tended to buy crops in the field or on the trees, thus cutting short" }, { "docid": "23145370", "title": "", "text": "that was a violation of duty imposed on him by § 2. And § 29 declares that violators of any provision shall be punished. Taken according to their ordinary meaning, the words used are sufficient to make the facts alleged and found a punishable offense. The rule that penal statutes are to be strictly construed in favor of persons accused is not violated by allowing the language to have its full meaning where that construction is in harmony with the context and supports the policy and purposes of the enactment. United States v. Hartwell, 6 Wall. 385, 395. United States v. Wiltberger, 5 Wheat. 76, 95. Section 3 forbids a narrow or strict construction of the Act, and directs that all its provisions “ shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.” Diligence and good faith on the part of enforcement officers are essential. The great difficulties always attendant upon efforts to suppress the liquor traffic have been noticed and cited in a number of decisions of this Court. Crane v. Campbell, 245 U. S. 304, 307. Jacob Ruppert v. Caffey, 251 U. S. 264, 282, 297. Everard’s Breweries v. Day, 265 U. S. 545, 560. Lambert v. Yellowley, 272 U. S. 581, 595. The failure to enforce laws of the States passed to regulate or prohibit the sale of intoxicating liquor was one of the principal reasons for the adoption of the Eighteenth Amendment. Violations of such enactments were open and notorious. Connivance and cooperation between officers and offenders frequently existed. Those who drafted and passed the enforcement Act knew that national prohibition would be assailed by influences more powerful than those that had embarrassed earlier and less sweeping state laws. Experience had shown that it would not do to leave prohibition enforcement officers free to determine what cases should be prosecuted and what ignored, and that mere imposition of duty to report offenders would not be enough. The infliction of punishment for their intentional violations is an appropriate measure to hold them to the performance of their" }, { "docid": "11053620", "title": "", "text": "or aiding it, or furthering it in any of the specified ways, are the acts pun ished, when done with a purpose which is immoral within the meaning of the law.” Gebardi v. United States, 287 U.S. 112, 118, 53 S.Ct. 35, 36, 77 L.Ed. 206, 84 A.L. R. 370. The language of section 2 of the Act should be given its full meaning, since that construction supports the policy and purposes of the enactment. Donnelley v. United States, 276 U.S. 505, 512, 48 S.Ct. 400, 72 L.Ed. 676; Wilson v. United States, 8 Cir., 77 F.2d 236, 239, 240. The verb “cause” as used in section 2 is entitled to the meaning ascribed to it by the trial court. This is indicated by the decisions of this Court in Huffman v. United States, 8 Cir., 259 F. 35, 38, and Demolli v. United States, 144 F. 363, 366, 6 L.R.A.,N.S., 424, 7 Ann.Cas. 121; by the decision of the Circuit Court of Appeals of the Second Circuit in Reed v. United States, 2 Cir., 96 F.2d 785, 787, certiorari denied 305 U.S. 612, 59 S.Ct. 71, 83 L.Ed. 399; and by the ruling of the Supreme Court in United States v. Kenofskey, 243 U.S. 440, 443, 37 S.Ct. 438, 61 L.Ed. 836. The fact that the evidence shows that what was done by the appellant was also an offense under section 3 of the Act, which section is “directed toward the persuasion, inducement, enticement, or coercion of the prohibited transportation, * * * ”, Gebardi v. United States, supra, page 119 of 287 U.S., page 36 of 53 S.Ct., 77 L.Ed. 206, 84 A.L.R. 370, I regard as having no substantial bearing on the question of appellant’s guilt under section 2 of the Act. I think there is no conflict between Huffman v. United States, supra, 259 F. 35, and Roark v. United States, 8 Cir., 17 F.2d 570, 51 A.L.R. 870. Roark entered a plea of guilty to an indictment containing four counts. Two of the counts charged him with violating section 2 of the Act, and the" }, { "docid": "22414528", "title": "", "text": "Senate debates at the time of its passage, I find, 1st, That attention was called to the point whether this act did make the offence dependent on race, color, or previous condition; 2d, That it was conceded by those having charge of the bill that its language must embrace that class of cases; 3d, That they were satisfied with the bill as it then stood, and as it now appears in the act we are considering. The particularity required in an indictment or in the statutory description of offences has at times been extreme, the distinctions almost ridiculous. I cannot but think that in some cases good sense is sacrificed to technical nicety, and a sound principle carried to an extravagant extent. The object of an indictment is to apprise the court and the accused of what is charged against him, and the object of a statute is to declare or define the offence intended to be made punishable. It is laid down, that “ when the charge is not the absolute perpetration of an offence, but its primary characteristic lies in the intent, instigation, or motives of the party towards its perpetration, the acts of the accused, important only as developing the mala mens, and not constituting of themselves the crime, need not be spread upon the record.” United States v. Almeida, Whart. Prec. 1061, 1062, note; 1 Whart. C. L. § 285, note. In the case before us, the acts constituting the offence are all spread out in the indictment, and the alleged defects are in the facts constituting the mala mens. The refusal to receive an affidavit as evidence that the tax had been paid by Garner, and the rejection of his vote, are the essential acts of the defendants which constitute their guilt. The rest is matter of motive or instigation only. As to these, the extreme particularity and the strict construction expected in indictments, and penal statutes would seem not to be necessary. In Sickles v. Sharp, 13 Johns. 49, it is said, “ The rule that penal statutes are to be strictly construed admits" }, { "docid": "23145369", "title": "", "text": "prescribed, shall be fined for a first offense not more than $500 . . .” As there are no common law crimes against the Government (United States v. Eaton, 144 U. S. 677), each case involves the construction of a statute to determine whether the acts or omissions of the accused are denounced as punishable. And regard is always to be had to the familiar rule that one may not be punished for crime against the United States unless the facts shown plainly and unmistakably constitute an offense within the meaning of an Act of Congress. United States v. Lacher, 134 U. S. 624, 628. Todd v. United States, 158 U. S. 278, 282. Fasulo v. United States, 272 U. S. 620, 629. The evidence showed, and the verdict, when read in the light of the court’s charge, means that the jury found that Curran was discovered transporting ten barrels of intoxicating liquor and that plaintiff in error, with actual knowledge of that violation, intentionally failed to report the crime and offender for prosecution. Plainly that was a violation of duty imposed on him by § 2. And § 29 declares that violators of any provision shall be punished. Taken according to their ordinary meaning, the words used are sufficient to make the facts alleged and found a punishable offense. The rule that penal statutes are to be strictly construed in favor of persons accused is not violated by allowing the language to have its full meaning where that construction is in harmony with the context and supports the policy and purposes of the enactment. United States v. Hartwell, 6 Wall. 385, 395. United States v. Wiltberger, 5 Wheat. 76, 95. Section 3 forbids a narrow or strict construction of the Act, and directs that all its provisions “ shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.” Diligence and good faith on the part of enforcement officers are essential. The great difficulties always attendant upon efforts to suppress the liquor traffic have been noticed and cited in a number" }, { "docid": "11095979", "title": "", "text": "that no question of infringement or validity turned on any close construction of the patent claims. However, this language was not used inadvisedly. In Buckeye Incubator Co. v. Petersime, District Judge Hiekenlooper had occasion to consider closely the construction of these patent claims, and held that they were not infringed by a device or hatching method similar in its principle of operation to defendant’s. That case is now pending on appeal. In Buckeye Incubator Co. v. Cooley, supra, Judge Woolley, in discussing the prior art, uses this language: “More important still, there Was no arrangement for establishing and regulating currents of heated air and, similarly, no provision for obtaining uniformity of temperature other than that initially provided by the heating means. Moreover it should be noted that the heated air, like the wind, would go where it listeth, and, accordingly, it acted as it pleased.” In the present ease, at the hearing and before seeing Judge Woolley’s opinion, a similar expression was used by me in describing the operation of defendant’s apparatus. Judge Woolley, in describing Smith’s hatching method, uses this language: “He, too, set eggs in trays arranged in tiers and inclosed them in a chamber, and he also provided artificially heated air by a motor driven fan positioned at the top of the chamber, but he established an air current and regulated its direction by arranging the tiers of trays in two columns parallel with and separated from each other so as to form between them a central corridor, and placed partitions or curtains from the top to a short distance from the bottom of the tiers and directed the air current downwardly, not through the eggs, but through the corridor where it mushroomed on the floor, spread beneath the tiers, ascended through the egg trays and escaped through definitely arranged air outlets. By so controlling the current of heated air Smith claims, and we think correctly, that he is enabled to attain unif ormity of temperature in its movement.” Even if all these expressions were used in a situation not requiring an exact determination of Smith’s method" }, { "docid": "22969149", "title": "", "text": "it along with “carrying” or “using.” “In spite of the esoteric sound of the ex-pressio unius maxim, it is generally accurate to assume that when people say one thing they do not mean something else.” 2A N. Singer, Sutherland Statutory Construction § 47.01 (Sands 4th ed.1984), and authorities cited. We find further support for our position in 18 U.S.C.A. § 924(b), the subsection immediately preceding § 924(c), in which Congress explicitly provided that “[wjhoever, with intent to commit therewith an offense punishable by imprisonment for a term exceeding one year, ... ships, transports, or receives a firearm ... in interstate or foreign commerce,” shall be in violation. (Emphasis added.) Surely, Congress knows how to use “transports” when it chooses; in § 924(c) it did not so choose, and we do not choose to legislate on the matter. However, our analysis does not end here. We have decided what carrying is not, but not yet what it is. A careful reading of Jury Instruction No. 17 shows that the jury was instructed to find a simultaneous possession and transportation for the accused to be guilty of carrying under § 924(c); it does not equate transportation with carrying. Defendant contends that “carrying” equates only with “bearing on the person or clothing.” We disagree. We do admit that criminal statutes will not be construed to include anything beyond their letter. United States v. Bass, 404 U.S. 336, 347-48, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971); United States v. Sparrow, 635 F.2d 794, 796 (10th Cir.1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 209 (1981). However, the rule of strict construction does not require that penal statutes be given the “narrowest meaning” that the words of the statute will allow. United States v. Raynor, 302 U.S. 540, 552, 58 S.Ct. 353, 358-59, 82 L.Ed. 413 (1938); Singer v. United States, 323 U.S. 338, 341-42, 65 S.Ct. 282, 284-85, 89 L.Ed. 285 (1945); United States v. Bramblett, 348 U.S. 503, 509-10, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955). In an effort to construe the Congressional intent at the time of" }, { "docid": "22176324", "title": "", "text": "3278, 77 L.Ed.2d 938] (1983), quoting Eastern Transportation Co. v. United States, 272 U.S. 675, 686 [47 S.Ct. 289, 291, 71 L.Ed. 472] (1927). The no-interest rule provides an added gloss of strictness upon these usual rules. “[T]here can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice where the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express, and it must be strictly construed.” United States v. N.Y. Rayon Importing Co., 329 U.S. [654], at 659 [67 S.Ct. 601, 604, 91 L.Ed. 577] [1947]. The Claims Court viewed the EAJA language of section 2412(d)(2)(A) which expressly permits the court to determine that “an increase in the cost of living ... justifies a higher [than $75 per hour] fee,” as sufficient authorization for the court to include an adjustment for post-performance time periods “so long as the hourly rate allowed does not exceed ‘prevailing market rates.’” See Chiu, 18 Cl.Ct. at 570-72. We do not agree that this language meets the exacting standard required to grant the Claims Court such discretion. It must be borne in mind that the statute before us is a fee shifting statute not a damage award statute. Further, the statute concerns an adjustment of a $75 cap on attorney fees set with respect to all fees, market rate or not, incurred in 1981. Clearly, the statute does not contemplate full recoupment. See Underwood, 487 U.S. at 573, 108 S.Ct. at 2554. That is the point of the cap. It even more clearly does not contemplate recoupment of delay damages. Were there any doubt on this interpretation, the language of the statute is at best ambiguous, and in accordance with the no-interest rule, awards in the nature of interest are not permitted except where the statutory mandate is unequivocal. Shaw, 478 U.S. at 318, 106 S.Ct. at 2963; Doyle v. United States, 931 F.2d 1546 (Fed.Cir.1991). For the foregoing reasons," }, { "docid": "21326339", "title": "", "text": "Judge was not a perjury done in a court of the United States, it should be held that a witness before a grand jury is not a witness before a court. It is further argued that, because those who had given bribes to Wilson had not been indicted, no cases were pending before the court; so that Wilson was not and was not about to be a witness in court at the time he received the bribes. There are no common-law crimes against the United States. United States v. Eaton, 144 U. S. 677, 12 S. Ct. 764, 36 L. Ed. 591; Donnelley v. United States, 276 U. S. 505, 511, 48 S. Ct. 400, 72 L. Ed. 676. Each criminal case requires the construction of a statute to determine whether the acts or omissions of the accused are denounced as punishable. One may not be punished for a crime against the government unless the facts shown plainly and unmistakably constitute an offense within the meaning of an act of Congress. United States v. Lacher, 134 U. S. 624, 628, 10 S. Ct. 625, 33 L. Ed. 1080; Todd v. United States, supra, 158 U. S. 278, page 282, 15 S. Ct. 889, 39 L. Ed. 982; Fasulo v. United States, 272 U. S. 620, 629, 47 S. Ct. 200, 71 L. Ed. 443; Donnelley v. United States, supra, 276 U. S. 505, page 511, 48 S. Ct. 400, 72 L. Ed. 676; United States v. Gradwell et al., 243 U. S. 476, 485, 37 S. Ct. 407, 61 L. Ed. 857; United States v. Bathgate, et al., 246 U. S. 220, 225, 38 S. Ct. 269, 62 L. Ed. 676; Speeter v. United States (C. C. A. 8) 42 F.(2d) 937, 940, 941. But the rule that a penal statute is to be strictly construed in favor of persons accused, is not violated by allowing the language of the statute to have its full meaning, where that construction supports the policy and purposes of the enactment. United States v. Hartwell, 6 Wall. 385, 395, 396, 18 L. Ed. 830;" }, { "docid": "5918054", "title": "", "text": "the indictment. Defendant contends that the statute has reference only to common carriers, and that properly construed, the word “ship,” as used therein, does not involve transportation. As this is a criminal statute, it must be construed strictly, and it can not be enlarged by implication or intendment beyond the fair meaning of the language used. It should not, of course, be construed so as to defeat the obvious intention of Congress. A statutory offense can not be established by implication and there can be no constructive offense. Before an accused can be punished, his act must be plainly within the statute. United States v. Resnick, 299. U.S. 207, 57 S.Ct. 126, 81 L.Ed. 127; Donnelley v. United States, 276 U.S. 505, 48 S.Ct. 400, 72 L.Ed. 676; Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; First Natl. Bank of Anamoose v. United States, 8 Cir., 206 F. 374, 46 L.R.A.,N.S., 1139. In construing the statute, it is- important to have in mind the evil which it was intended to remedy. This statute was the third and last section of the Act of March 4, 1909, known as the Knox Act. The conditions which prompted its enactment were referred to by this court in Blumenthal v. United States, 8 Cir., 88 F.2d 522, 525, where we said: “In the early 80’s, a number of the states of the Union had enacted prohibition laws. These local laws were to a very considerable degree rendered ineffectual by the decisions of the Supreme Court to the effect that because of the operation of the commerce clause of the Constitution, the local laws could not be made applicable to intoxicating liquor coming from abroad, until or unless such liquor had become mingled with the common mass of property within the territory entered. Bowman v. Chicago & N. W. Ry. Co., 125 U.S. 465, 8 S.Ct. 689, 1062, 31 L.Ed. 700; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128. In an attempt to enable the states to enforce their local prohibition laws, Congress passed the so-called" }, { "docid": "1012240", "title": "", "text": "air which is heated by the pipes goes upward in the corridor, and comes down through the eggs, or among the eggs in the trays, passing from the newer eggs to the eggs in the more advanced stage of incubation. “A. Yes; if the hatching eggs were put in the bottom. “Q. That is true, if you put the eggs anywhere but at the top ? A. Not true if you put the hatching eggs in the middle and the newer eggs below. “Q. Did you try putting the hatching eggs, as you call them, the eggs in a more advanced stage of incubation in the middle? A. We did at the plant, but we did not follow that part of it through. “Q. So you do not know what would take place when such an arrangement was made? A. I would not say. I do not know. I would say, if the air traveled through those eggs, they would carry heat units with it. “Q. But you are now speaking as a matter of opinion as distinguished from something that you tested. You did not try it? A. Not in this particular ease.” The sole question is whether such an arrangement infringes the patent in suit. The Circuit Court of Appeals, in 17 F.(2d) 453, held that the patent disclosed air currents passing first through the eggs in advanced stages of incubation to those in less advanced .stages of incubation. This Hillpot does not do. Judge Moorman, in Buckeye v. Petersime (Sixth Circuit) 19 F.(2d) 722, said: “Looking to the language of the claims, as indeed to the device that Smith uses, it would seem that he had in mind a process by which the warm air taken into the corridor would bo currently directed, so as to strike first the eggs in the more advanced incubation. * * * ” Everything in the present case supports the able conclusion of that distinguished jurist.' Step by step through the Patent Office did Smith limit his claims to the passing of the air cúrrente from the eggs in the more" }, { "docid": "5918053", "title": "", "text": "of the United States, or place non-contiguous to but subject to the jurisdiction thereof, into any other State, Territory, os District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States * * * any package of or package containing any spirituous, vinous, malted, or other fermented liquor, or any compound containing any spirituous, vinous, malted, or other fermented liquor * * * unless such package be so labeled on the outside cover as to plainly show the name of the consignee, the nature of its contents, and the quantity contained therein, shall be fined,” etc. The information charged defendant with unlawfully and knowingly shipping and causing to be shipped from the State of II linois into the State of-Missouri 150 gallons of distilled spirits in packages which did not bear on the outside cover labels and markings as provided by this statute. The liquor covered by the information is the same as that involved in the indictment. Defendant contends that the statute has reference only to common carriers, and that properly construed, the word “ship,” as used therein, does not involve transportation. As this is a criminal statute, it must be construed strictly, and it can not be enlarged by implication or intendment beyond the fair meaning of the language used. It should not, of course, be construed so as to defeat the obvious intention of Congress. A statutory offense can not be established by implication and there can be no constructive offense. Before an accused can be punished, his act must be plainly within the statute. United States v. Resnick, 299. U.S. 207, 57 S.Ct. 126, 81 L.Ed. 127; Donnelley v. United States, 276 U.S. 505, 48 S.Ct. 400, 72 L.Ed. 676; Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; First Natl. Bank of Anamoose v. United States, 8 Cir., 206 F. 374, 46 L.R.A.,N.S., 1139. In construing the statute, it is- important to have in mind the evil which it was intended to" }, { "docid": "18750820", "title": "", "text": "see, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979), the phrase cannot properly be interpreted to mean in the rail carrier’s overall operations. Otherwise, the requirement of “in its operations” would be rendered tautologous: by definition a motor carrier will be used, if at all, by an acquiring rail carrier in its overall transportation activities or operations. Thus, it seems to us that the only reasonable construction of this phrase is that Congress intended for rail carriers to be allowed to acquire only motor carriers that would be useful in rail operations. See ATA II, 364 U.S. at 9, 80 S.Ct. at 1575,1576 (mandate of proviso is to prohibit acquisitions where “the motor transportation is essentially unrelated to rail service”). In its Acquisition of Motor Carriers decision, however, the ICC rejected this straightforward analysis. According to the Commission, it was the agency, not Congress, that “added the word ‘rail’ to the statute that had only provided that the rail carrier use the to-be-acquired motor carrier ‘to public advantage in its operations.’ See 49 U.S.C. § 11344(c).” J.A. at 57; see also id. at 64. But contrary to the Commission’s approach, we cannot properly ascertain Congress’ intent in employing a particular statutory phrase without considering the relationship of that phrase to the rest of the pertinent statutory language. And as we observed above, the phrase “in its operations” makes no sense in the context of the clause in which it appears unless the phrase is construed to mean rail operations. Even if the phrase, “in its operations,” were ambiguous when considered as part of the second restriction alone, its meaning cannot reasonably be disputed when considered in relation to the rest of the proviso. In particular, we are persuaded that construing “in its operations” to mean overall transportation operations of the acquiring carrier renders the second restriction redundant of the general public interest restriction. That is not, it seems to us, an appropriate way of reading statutes. See generally 2A Sutherland, Statutes and Statutory Construction § 46.06 (C. Sands rev. 4th ed." }, { "docid": "11635857", "title": "", "text": "process his entire output economically and realize a greater profit. One reason for this is that the machine can be operated by ordinary ranch labor which is paid less than must be paid by a city packing plant. Gradation of eggs, according to the witness, is an industry-accepted process, and is required by the laws of California. Eggs cannot generally be marketed to the consumer until they have been washed, sorted, graded, and packed, but, if these processes were not done on the farm, Olson Brothers would do it in their central plant. While the Staalkat machine does not improve the quality of eggs per se nor further their production, the consumer may benefit to the extent that the eggs are packed by the farmer 2 days sooner than they could have been at a city plant, so the consumer receives fresher eggs. The Staalkat machine is also used on the Dernier Farms which produce both hatching eggs and marketing eggs. Hatching eggs are put through the Staalkat grader where they are sized and the more desirable eggs are selected and put into hatching trays and used in the incubation process. This is essential to the operation of the hatchery because a good productive bird which lays the right sized eggs must be hatched from a breeder that likewise lays desirable eggs. Dernier does not use its Staalkat machines for candling. Mr. Dernier also referred to the change from family type operations to the larger business type operations, which handled breeding and housing of chickens and the handling and production of eggs, including “the ranch processing of the eggs.” He noted that the number of producers in California had decreased from 10,000 to 1,500 in the last 15 years. The Stoalkat machine fits the average sized farm of today better than some of the larger packing units which are more desirable on larger operations of processing plants. Those who operate the machine on the farm are regarded as agricultural laborers rather than industrial laborers. The Dernier farm produces 50 to 60 million eggs a year. It markets 25 percent of" } ]

[ { "docid": "22089337", "title": "", "text": "a constitutional distinction between the States and other employers of seamen. Because of the role of the States in our federal system, “[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” Atascadero State Hospital v. Scanlon, supra, at 246. See Quern v. Jordan, 440 U. S. 332, 342 (1979). See also Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S., at 285. In Scanlon the Court held that § 504 of the Rehabilitation Act of 1973, 29 U. S. C. § 794, which provides remedies for “any recipient of Federal assistance,” does not contain the unmistakable language necessary to negate the States’ Eleventh Amendment immunity. For the same reasons, we hold today that the general language of the Jones Act does not authorize suits against the States in federal court. IV In Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964), the Court considered whether an employee of a state-owned railroad could sue the State in federal court under the FELA. The Court concluded that the State of Alabama had waived its Eleventh Amendment immunity. Id., at 186. It reasoned that Congress evidenced an intention to abrogate Eleventh Amendment immunity by making the FELA applicable to “every common carrier by railroad while engaging in commerce between any of the several States____” § 1, 35 Stat. 65, 45 U. S. C. § 51. The Court mistakenly relied on cases holding that general language in the Safety Appliance Act, §§ 2, 6, and the Railway Labor Act, § 151 et seq., made those statutes applicable to the States. It reasoned that it “should not presume to say, in the absence of express provision to the contrary, that [Congress] intended to exclude a particular group of [railroad] workers from the benefits conferred by the Act.” Parden v. Terminal Railway of Alabama Docks Dept., supra, at 190. But, as discussed above, the constitutional role of the States sets them apart from other employers and defendants. Atascadero State Hospital v. Scanlon, 473 U. S., at" } ]

[ { "docid": "22684512", "title": "", "text": "S.Ct. 900, 907-08, 79 L.Ed.2d 67 (1984); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). There are, however, certain well-established exceptions to the protection of the Eleventh Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). If a state waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action. See e.g., Id. at 234, 105 S.Ct. at 3142; Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780 (1883). Moreover, Congress may specifically abrogate the states’ Eleventh Amendment immunity. See e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (finding abrogation in legislation passed pursuant to § 5 of the Fourteenth Amendment); and Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (finding abrogation in legislation passed pursuant to the Congress’ Article I, § 8 plenary power over commerce). Here, appellants contend that Congress specifically abrogated the sovereign immunity of states and all state agencies in amending the ADEA, and that the Eleventh Amendment therefore presents no bar to their ADEA claim against the Commonwealth. However, the plain language of the ADEA defeats this argument. Two conditions must be met before we can decide that Congress abrogated the states’ Eleventh Amendment immunity in enacting or amending the ADEA. First, the congressional legislation in question must articulate an unequivocal congressional intention to abrogate the sovereign immunity of the states. Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 2401, 105 L.Ed.2d 181 (1989); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3146-47, 87 L.Ed.2d 171 (1985). On more than one occasion, the Supreme Court has said that Congress “must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself.” Atascadero, 473 U.S. at 242, 105 S.Ct. at 3148; Dellmuth, 491 U.S. at 230,109 S.Ct. at 2401 (“[E]vidence of congressional intent must be both unequivocal and textual.”). “In traditionally sensitive areas, such as legislation affecting" }, { "docid": "9669209", "title": "", "text": "higher one climbs up the ladder of government. . Alaska, in fact, has such a whistle-blower protection law. Alaska Stat. 39.90.100-.150. . There is no attempt to show congressional concern for the violation of First Amendment rights per se. The EEOC's and Intervenor Ward's argument seems to be that preventing retaliatory discharges against state employees for complaining about sexual harassment is part of Congress' prophylactic remedy for unconstitutional gender discrimination. It therefore stands or falls with the legitimacy of prophylactic remedies for employment discrimination. IKUTA, Circuit Judge, with whom Judges TALLMAN and CALLAHAN join, dissenting: To determine whether Congress validly abrogates a state’s sovereign immunity, we must answer two questions: “first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). With respect to the first question, the Supreme Court has explained that Congress’s intent must be both “unequivocal and textual.” Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989); accord Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (“Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.”). The majority concludes that the Government Employee Rights Act of 1991 (GERA), Pub.L. 102-166, title III, 105 Stat. 1071, 1088, meets this “stringent” clear-statement rule. Dellmuth, 491 U.S. at 228, 109 S.Ct. 2897. I disagree. In my view, a careful analysis of GERA reveals that the standard laid out in Dellmuth and Atascadero, and applied by the Court many times since, has not been met. GERA does not explicitly abrogate state sovereign immunity; it does not specify states as potential defendants; and it does not create a statutory scheme under which states are the only possible defendants. Therefore, I respectfully dissent. I Atascadero and Dellmuth considered, respectively, whether the Rehabilitation Act and the Education of the Handicapped Act abrogated" }, { "docid": "20145157", "title": "", "text": "at 2399-2400. As the Court stated in Dellmuth: To temper Congress’ acknowledged power of abrogation with due concern for the Eleventh Amendment’s role as an essential component of our constitutional structure, we have applied a simple but stringent test: “Congress may abrogate the State’s constitutionally secured im munity from suit in federal court only by making its intention unmistakably clear in the language of the statute.” ... Evidence of congressional intent must be both unequivocal and textual. 491 U.S. at 227-28, 109 S.Ct. at 2400 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171, reh’g denied, 473 U.S. 926, 106 S.Ct. 18, 87 L.Ed.2d 696 (1985)) (emphasis added); Welch, 483 U.S. at 474, 107 S.Ct. at 2946; Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 16, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981); see also Gregory, — U.S. —, 111 S.Ct. at 2406 (“in the face of ambiguity, we will not attribute to Congress an intent to intrude on State government[ ] ... regardless of whether Congress acted pursuant to its commerce clause power or § 5 of the Fourteenth Amendment”); EEOC v. Wyoming, 460 U.S. 226, 244 n. 18, 103 S.Ct. 1054, 1064 n. 18, 75 L.Ed.2d 18 (1983) (“rule of statutory construction to be applied where statutory intent is ambiguous [is that] Congress must state its intent to impose mandatory obligations on the states”); Quern, 440 U.S. at 342-44, 99 S.Ct. at 1145-47 (“it is not easy to infer that Congress in legislating pursuant to the Commerce Clause ... desired silently to deprive the States of an immunity they have long enjoyed”). The Court has similarly employed a stringent standard to determine whether a state has waived Eleventh Amendment immunity. As stated in Feeney: “The Court will give effect to a State’s waiver of Eleventh Amendment immunity ‘only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.'\" 495 U.S. at 305, 110 S.Ct. at 1873 (quoting Atascadero, 473 U.S. at 239-40," }, { "docid": "10547859", "title": "", "text": "be obvious from ‘a clear legislative statement.’ ” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 786, 111 S.Ct. 2578, 2584, 115 L.Ed.2d 686 (1991)). Congress may abrogate state sovereign immunity “only by making its intention unmistakably clear in the language of the statute.” Id. at 56, 116 S.Ct. at 1123, (quoting Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)). “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” Dellmuth v. Muth 491 U.S. at 231, 109 S.Ct. at 2402, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246, 105 S.Ct. 3142, 3149, 87 L.Ed.2d 171 (1985)). Instead, both the text and structure of the statute must “make[ ] it clear that the State is the [intended] defendant to the suit.” Seminole Tribe, 517 U.S. at 57, 116 S.Ct. at 1124. Congress is not required, however, to “explicitly reference to state sovereign immunity or the Eleventh Amendment.” Dellmuth, 491 U.S. at 233, 109 S.Ct. at 2403 (Scalia, J., concurring). As originally passed, the ADEA was enacted pursuant to the Commerce Clause and applied only to private sector employers. Age Discrimination in Employment Act of 1967, Pub.L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. § 621 et seq.). In 1974, Congress amended the ADEA (the “1974 Amendment”) to cover state and local government employees by expanding the definition of “employer” to include “a State or political subdivision of a State and any agency or instrumentality of a State.” Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 28(a)(2), 88 Stat. 55, 74 (codified as amended at 29 U.S.C. § 630(b)(2)). We find that this reference to the “State” in the 1974 Amendment evidences a clear statement that Congress intended to subject the states to suit in federal court. See Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 701 (1st Cir.1983) (“[T]he ADEA’s express authorization for the maintenance of suit against" }, { "docid": "23383228", "title": "", "text": "(the Education of the Handicapped Act (“EHA”) does not abrogate state immunity); Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468, 475, 107 S.Ct. 2941, 2947, 97 L.Ed.2d 389 (1987) (Congress did not express in “unmistakable statutory language” its intention to abrogate state immunity under the Jones Act); Atascadero, 473 U.S. at 242-46, 105 S.Ct. at 3147-49 (statutory language of the Rehabilitation Act not sufficiently clear to abrogate state immunity). In Union Gas, the Supreme Court held that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), abrogated the states’ Eleventh Amendment immunity to be free from suits in federal court. The Court found in CERCLA’s text the clear and unmistakable statutory language it found lacking in the EHA, the Jones Act and the Rehabilitation Act. What distinguishes CERCLA are its provisions ex pressly subjecting states to suit for money damages under CERCLA. Under CERCLA’s liability scheme, persons who own or operate hazardous waste facilities or who transport or dispose of hazardous waste are liable for all costs of removal and remediation at the site. 42 U.S.C. § 9607(a). States are expressly included in the statute’s definition of “persons” potentially liable under CERCLA. Id. § 9601(21). CERCLA also expressly provides that states are to be treated in exactly the same manner as nongovernmental owner/operators, in all but one circumstance, including liability. Id. § 9601(20)(D). The Court found it “highly significant” that Congress used language almost identical to the language of the provision waiving federal immunity to CERCLA suits in the state liability section. Another section of the statute provides that states will not be liable where “actions taken in response to an emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another person.” It continues, “[t]his paragraph shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the State or local government.” Id. § 9607(d)(2). The Court concluded that the limitations on the states'" }, { "docid": "6881230", "title": "", "text": "language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985) (internal quotations omitted)). The language of the 1990 amendments to the Copyright Act evinces an unmistakable intent to abrogate State sovereign immunity. The statute reads: Any State, any instrumentality, of a State, and any officer or employee of a State or instrumentality of a State ... shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of. sovereign immunity, from suit in Federal court by any person, ... for a violation of any of the exclusive rights of a copyright owner____ 17 U.S.C. § 511(a). The plain language of the statute makes it indubitable that Congress intended through this Act to abrogate the States’ sovereign immunity from suit in copyright matters. Having concluded that Congress clearly intended to abrogate the States’ sovereign immunity through the Copyright Act amendment, the Court now considers whether Congress passed the Act “pursuant to a valid exercise of power.” Mansour, 474 U.S. at 68, 106 S.Ct. at 425-26. The “inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?” Seminole Tribe, 116 S.Ct. at 1125 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 2669-71, 49 L.Ed.2d 614 (1976)). The Supreme Court has previously found authority to abrogate under' only two provisions of the Constitution. In Fitzpatrick, the Court recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, fundamentally altered the balance of state and federal power struck by the Constitution. Fitzpatrick, 427 U.S. at 455, 96 S.Ct. at 2671. The Supreme Court made the only other finding of abrogation in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). In that case, a plurality of" }, { "docid": "9669210", "title": "", "text": "v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989); accord Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (“Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.”). The majority concludes that the Government Employee Rights Act of 1991 (GERA), Pub.L. 102-166, title III, 105 Stat. 1071, 1088, meets this “stringent” clear-statement rule. Dellmuth, 491 U.S. at 228, 109 S.Ct. 2897. I disagree. In my view, a careful analysis of GERA reveals that the standard laid out in Dellmuth and Atascadero, and applied by the Court many times since, has not been met. GERA does not explicitly abrogate state sovereign immunity; it does not specify states as potential defendants; and it does not create a statutory scheme under which states are the only possible defendants. Therefore, I respectfully dissent. I Atascadero and Dellmuth considered, respectively, whether the Rehabilitation Act and the Education of the Handicapped Act abrogated state sovereign immunity. Both acts naturally and logically included states as potential defendants. But the Supreme Court concluded that, in both statutes, Congress did not sufficiently express its intent to subject the states to liability. A In Atascadero, a case from our circuit, a graduate student sued a California state hospital for discriminating against him in violation of the conditions imposed by the Rehabilitation Act. We held that Congress adequately expressed its intent to abrogate state sovereign immunity because the Rehabilitation Act authorized suits against recipients of federal assistance, and because the “Act contains extensive provisions under which states are the express intended recipients of federal assistance.” Scanlon v. Atascadero State Hosp., 735 F.2d 359, 360 (9th Cir.1984). Specifically, we noted that “Section 794 of the Rehabilitation Act broadly bars ‘discrimination under any program or activity receiving federal financial assistance,’ ” and that “§ 794a(a)(2) provides remedies, procedures, and rights against ‘any recipient of Federal assistance.’ ” Id. We reasoned that, “[i]f states receive federal assistance under the statute, they plainly fall within the defined" }, { "docid": "23383227", "title": "", "text": "(1989) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976)), or pursuant to the Commerce Clause, Pennsylvania v. Union Gas Co., 491 U.S. 1, 14-19, 109 S.Ct. 2273, 2281-84, 105 L.Ed.2d 1 (1989) (plurality opinion). The Supreme Court has set forth and adhered to a strict test for Congressional elimination of state sovereignty. This test requires unequivocal and textual support: Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985). While falling short of requiring Congress to explicitly annul state immunity by making reference to the Eleventh Amendment or state sovereign immunity, see Dellmuth, 491 U.S. at 233, 109 S.Ct. at 2402 (Scalia, J., concurring), the Court has consistently found no abrogation in the absence of the requisite clear statutory language the Atascadero test requires. See Dellmuth, 491 U.S. at 227-32, 109 S.Ct. at 2399-402 (the Education of the Handicapped Act (“EHA”) does not abrogate state immunity); Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468, 475, 107 S.Ct. 2941, 2947, 97 L.Ed.2d 389 (1987) (Congress did not express in “unmistakable statutory language” its intention to abrogate state immunity under the Jones Act); Atascadero, 473 U.S. at 242-46, 105 S.Ct. at 3147-49 (statutory language of the Rehabilitation Act not sufficiently clear to abrogate state immunity). In Union Gas, the Supreme Court held that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), abrogated the states’ Eleventh Amendment immunity to be free from suits in federal court. The Court found in CERCLA’s text the clear and unmistakable statutory language it found lacking in the EHA, the Jones Act and the Rehabilitation Act. What distinguishes CERCLA are its provisions ex pressly subjecting states to suit for money damages under CERCLA. Under CERCLA’s liability scheme, persons who own or operate hazardous waste facilities or who transport" }, { "docid": "22583908", "title": "", "text": "be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. “While the Amendment by its terms does not bar suits against a State by its own citizens, [the Supreme] Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). State immunity extends to state agencies and to state officers who act on behalf of the state. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-47, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Thus, when the state is the real party in interest, the Eleventh Amendment generally bars federal court jurisdiction over an action against a state official acting in his or her official capacity. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). In certain circumstances, however, Congress may abrogate the states’ constitutionally secured immunity from suit in federal court. To do so, Congress must make “ ‘its intention unmistakably clear in the language of the statute.’ ” Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.” Atascadero, 473 U.S. at 246, 105 S.Ct. 3142. The CWA, RCRA, and CERCLA contain substantially identical provisions permitting citizens to sue as private attorneys general in circumstances where government authorities have, after notice, failed to take steps to remedy particular environmental harms. These provisions state that “any citizen may commence a civil action on his own behalf" }, { "docid": "9669214", "title": "", "text": "113, 129 (3d Cir.1988) (quoting David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 422 (1st Cir.1985)). Again, the Supreme Court reversed. The Court summarily rejected two “non-textual arguments” for abrogation: first, “that abrogation is ‘necessary to achieve the EHA’s goals,’ ” and second, that Congress had amended the Rehabilitation Act after Atascadero to expressly abrogate state sovereign immunity. 491 U.S. at 228-29, 109 S.Ct. 2397. The Court deemed both these arguments “beside the point” and pointedly discouraged arguments based on legislative history. Id. at 230, 109 S.Ct. 2397 (“Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment. If Congress’ intention is ‘unmistakably clear in the language of the statute,’ recourse to legislative history will be unnecessary; if Congress’ intention is not unmistakably clear, recourse to legislative history will be futile, because by definition the rule of Atascadero will not be met.” (quoting Atascadero, 473 U.S. at 242, 105 S.Ct. 3142)). With respect to the statutory language of the Education of the Handicapped Act (the “proper focus of an inquiry into congressional abrogation of sovereign immunity”), the Court held that none of the provisions on which the Third Circuit relied met Atascadero’s dear-statement requirement. Dellmuth, 491 U.S. at 231, 109 S.Ct. 2397. The Third Circuit had focused on the Act’s findings, in which Congress stated, “it is in the national interest that the Federal government assist State and local efforts to provide programs to meet the education needs of handicapped children in order to assure equal protection of the law.” Muth, 839 F.2d at 128 (quoting 20 U.S.C. § 1415(e)(2)) (alteration in original). The Court dismissed this reasoning: “the general statement of legislative purpose in the Act’s preamble simply has nothing to do with the States’ sovereign immunity.” 491 U.S. at 231,109 S.Ct. 2397. The Third Circuit also relied heavily on the Education of the Handicapped Act’s judicial review provision, which allowed parties aggrieved by the administrative process to “bring a civil action ... in any State court of competent jurisdiction or in a district court of the United States" }, { "docid": "6881229", "title": "", "text": "or instrumentality of the State of Texas. Rodriguez argues in reply that Congress, through a 1990 amendment to the Copyright Act of 1976, unambiguously abrogated the State of Texas’ immunity from suit. 17 U.S.C. § 511(a); Unix Sys. Lab., Inc. v. Berkeley Software Design, Inc., 832 F.Supp. 790, 799 (D.N.J.1993). To determine whether Congress has abrogated a State’s sovereign immunity, the Court asks two questions: first, whether Congress has “‘unequivocally expresse[d] its intent to abrogate the immunity,’” and second, “whether Congress has acted ‘pursuant to a valid exercise of power.’” Seminole Tribe, 116 S.Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)). Congress’ intent to abrogate the States’ immunity from suit must be obvious from “a clear legislative statement.” Blotchford v. Native Village of Noatak, 501 U.S. 775, 786, 111 S.Ct. 2578, 2584, 115 L.Ed.2d 686 (1991). As the Supreme Court has stated, “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985) (internal quotations omitted)). The language of the 1990 amendments to the Copyright Act evinces an unmistakable intent to abrogate State sovereign immunity. The statute reads: Any State, any instrumentality, of a State, and any officer or employee of a State or instrumentality of a State ... shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of. sovereign immunity, from suit in Federal court by any person, ... for a violation of any of the exclusive rights of a copyright owner____ 17 U.S.C. § 511(a). The plain language of the statute makes it indubitable that Congress intended through this Act to abrogate the States’ sovereign immunity from suit in copyright matters. Having concluded that Congress clearly intended to abrogate the States’ sovereign immunity through the Copyright Act amendment," }, { "docid": "23383226", "title": "", "text": "State School & Hospital v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), by citizens of another state, foreigners or its own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The amendment also bars suits for monetary relief against state officials sued in their official capacity. However, the amendment does not preclude actions against state officials sued in their official capacity for prospective injunctive or declaratory relief. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Eleventh Amendment has no application under two circumstances: 1) where a state has itself waived its immunity from federal suit; and 2) where Congress has abrogated the states’ immunity. The plaintiffs make no argument for waiver, but do argue that Congress intended to abrogate the states’ immunity by passing ERISA. Congress may override the states’ Eleventh Amendment immunity when it acts pursuant to its powers under the Fourteenth Amendment, Dellmuth v. Muth, 491 U.S. 223, 227, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976)), or pursuant to the Commerce Clause, Pennsylvania v. Union Gas Co., 491 U.S. 1, 14-19, 109 S.Ct. 2273, 2281-84, 105 L.Ed.2d 1 (1989) (plurality opinion). The Supreme Court has set forth and adhered to a strict test for Congressional elimination of state sovereignty. This test requires unequivocal and textual support: Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985). While falling short of requiring Congress to explicitly annul state immunity by making reference to the Eleventh Amendment or state sovereign immunity, see Dellmuth, 491 U.S. at 233, 109 S.Ct. at 2402 (Scalia, J., concurring), the Court has consistently found no abrogation in the absence of the requisite clear statutory language the Atascadero test requires. See Dellmuth, 491 U.S. at 227-32, 109 S.Ct. at 2399-402" }, { "docid": "9669216", "title": "", "text": "without regard to the amount in controversy.” 839 F.2d at 129 (quoting). The Court rejected this analysis as well, reiterating its statement in Atascadero that “[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” 491 U.S. at 231, 109 S.Ct. 2397 (quoting Atascadero, 473 U.S. at 246, 105 S.Ct. 3142). The Court recognized that “the EHA’s frequent reference to the States, and its delineation of the States’ important role in securing an appropriate education for handicapped children, make the States, along with local agencies, logical defendants in suits alleging violations of the EHA.” Id. at 232, 109 S.Ct. 2397. Despite this recognition that the Act’s “statutory structure lends force to the inference that the States were intended to be subject to damages actions for violations of the EHA,” the Court held that “such a permis sible inference, whatever its logical force, would remain just that: a permissible inference. It would not be the unequivocal declaration which, we reaffirm today, is necessary before we will determine that Congress intended to exercise its powers of abrogation.” Id. at 232, 109 S.Ct. 2397. Accordingly, the Court held that “the statutory language of the EHA does not evince an unmistakably clear intention to abrogate the States’ constitutionally secured immunity from suit.” Id. at 232,109 S.Ct. 2397. This clear-statement rule has been criticized for being exceptionally demanding. See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 75, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (Brennan, J., dissenting) (“Where the Eleventh Amendment applies, the Court has devised a clear-statement principle more robust than its requirement of clarity in any other situation. Indeed, just today, the Court has intimated that this clear-statement principle is not simply a means of discerning congressional intent.” (citing Dellmuth, 491 U.S. at 232, 109 S.Ct. 2397)). But it is binding precedent: under Atascadero and Dellmuth, abrogation by inference is not enough. B Although the Atascadero-Dellmuth bar is extraordinarily high, it is not insurmountable. Applying these two decisions, the Court has held that Congress can sufficiently express" }, { "docid": "19177137", "title": "", "text": "(1996). Elias contends the bankruptcy court has jurisdiction because the abrogation of state sovereign immunity found in § 106(a) was enacted pursuant to a valid exercise of Congress’s Article I powers. Elias alternatively argues that the bankruptcy court has jurisdiction because the abrogation of state sovereign immunity found in § 106(a) was enacted pursuant to a valid exercise of Congress’s power under section 5 of the Fourteenth Amendment. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XI. The scope of the amendment has been extended to provide the states immunity from suits brought by their own citizens in the federal court. Seminole, 517 U.S. at 62-68, 116 S.Ct. at 1127-1129; Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-908, 79 L.Ed.2d 67 (1984). If Congress abrogated the Eleventh Amendment immunity from suit when it enacted § 106(a) of the Bankruptcy Code, the immunity defense is ineffective. The analysis to determine whether Congress abrogated the Eleventh Amendment immunity is two-pronged: “first, whether Congress has ‘unequivocally expresse[d] its intent to abrogate the immunity,’ and second, whether Congress has acted ‘pursuant to a valid exercise of power.’ ” Seminole, 517 U.S. at 55-56, 116 S.Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985)). I. Intent to Abrogate For Congress to abrogate a state’s sovereign immunity, it must clearly express its intent within the text of the statute. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985); Dellmuth v. Muth, 491 U.S. 223, 227-28, 109 S.Ct. 2397, 2399-2400, 105 L.Ed.2d 181 (1989). To satisfy this test, Congress must “express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself.” Atascadero, 473 U.S. at 243, 105 S.Ct. at 3148. . But the statute need not" }, { "docid": "9669213", "title": "", "text": "“that the Rehabilitation Act does not abrogate the Eleventh Amendment bar to suits against the States.” Id. Similarly, in Dellmuth, the parent of a child -with a learning disability brought an action against the child’s school district and Pennsylvania’s secretary of education under the Education of the Handicapped Act (later renamed the Individuals with Disabilities Education Act, see P.L. 101-476, 104 Stat. 1103, 1141-42 (1990)). See 491 U.S. at 225,109 S.Ct. 2397. The Third Circuit held that “the text of EHA and its legislative history leave no doubt that Congress intended to abrogate the 11th amendment immunity of the states.” Id. at 227, 109 S.Ct. 2397 (quoting Muth v. Central Bucks Sch. Dist., 839 F.2d 113, 128 (3d Cir.1988)). According to the Third Circuit, “[b]ecause the EHA and its legislative history reflect the ‘most basic of political knowledge that free public education is provided by and under the aegis of the states,’ ... Congress clearly contemplated litigation under the Act against a state in the federal courts.” Muth v. Central Bucks Sch. Dist., 839 F.2d 113, 129 (3d Cir.1988) (quoting David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 422 (1st Cir.1985)). Again, the Supreme Court reversed. The Court summarily rejected two “non-textual arguments” for abrogation: first, “that abrogation is ‘necessary to achieve the EHA’s goals,’ ” and second, that Congress had amended the Rehabilitation Act after Atascadero to expressly abrogate state sovereign immunity. 491 U.S. at 228-29, 109 S.Ct. 2397. The Court deemed both these arguments “beside the point” and pointedly discouraged arguments based on legislative history. Id. at 230, 109 S.Ct. 2397 (“Legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment. If Congress’ intention is ‘unmistakably clear in the language of the statute,’ recourse to legislative history will be unnecessary; if Congress’ intention is not unmistakably clear, recourse to legislative history will be futile, because by definition the rule of Atascadero will not be met.” (quoting Atascadero, 473 U.S. at 242, 105 S.Ct. 3142)). With respect to the statutory language of the Education of the Handicapped Act (the" }, { "docid": "14447511", "title": "", "text": "also Pennsylvania v. Union Gas Co., 491 U.S. 1, 14-17, 109 S.Ct. 2273, 2281-83, 105 L.Ed.2d 1 (1989) (plurality opinion) (suggesting power to abrogate stems from Commerce Clause). We disagree. Whether Congress has, in fact, abrogated a state’s immunity is determined by a “simple but stringent test: ‘Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.’ ” Dellmuth v. Muth, 491 U.S. 223, 227-28, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985)). Alaska Cargo relies on 45 U.S.C. § 1207(a)(1) (part of the transfer legislation passed pursuant to the 1984 conveyance of the Alaska Railroad by the United States to Alaska), which, it contends, embodies Congress’ express intention to subject the Railroad to federal antitrust laws. Section 1207(a)(1) provides that [ajfter the date of transfer to the State pursuant to section 1203 of this title, the State-owned railroad shall be a rail carrier engaged in interstate and foreign commerce subject to the jurisdiction of the Interstate Commerce Commission under chapter 105 of subtitle IV of Title 49, and all other Acts applicable to rail carriers subject to that chapter, including the antitrust laws of the United States, except [certain federal acts]. Nothing in this chapter shall preclude the State from explicitly invoking by law any exemption from the antitrust laws as may otherwise be available. 45 U.S.C. § 1207(a)(1). The district court found that whatever Congress was trying to say did not “even remotely approaeh[] the ‘unmistakable clarity’ that [it] is required to provide when intending to abrogate a state’s immunity from suit.” Alaska Cargo Transp., Inc. v. Alaska R.R., at 1223. We agree. Section 1207(a)(1) does not “unequivocally express [Congress’] intention” to override ARRC’s Eleventh Amendment immunity, as required by Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147, and reconfirmed in Dellmuth, 491 U.S. at 230, 109 S.Ct. at 2401: “Lest Atascadero be thought to contain any ambiguity, we reaffirm today that in" }, { "docid": "10547858", "title": "", "text": "sued in federal court, and in certain circumstances, Congress may abrogate the states’ sovereign immunity.” Goshtasby v. Board of Trustees of the Univ. of Ill., 141 F.3d 761, 765 (7th Cir.1998) (citing Seminole Tribe, 517 U.S. at 63-66, 71 n. 15, 116 S.Ct. at 1128, 1131 n. 15; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976)). In Seminole Tribe, the Supreme Court outlined a two-part inquiry for determining whether Congress has abrogated the states’ sovereign immunity from suit under the Eleventh Amendment in enacting particular legislation: “first, whether Congress ‘has unequivocally expressed its intent to abrogate the immunity,’ and second, whether Congress has acted ‘pursuant to a valid exercise of constitutional power.’ ” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (internal citation omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)). The University contends that in extending the ADEA to the states, Congress satisfied neither of these prongs. A Congress’s intent to abrogate state sovereign immunity “must be obvious from ‘a clear legislative statement.’ ” Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123 (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 786, 111 S.Ct. 2578, 2584, 115 L.Ed.2d 686 (1991)). Congress may abrogate state sovereign immunity “only by making its intention unmistakably clear in the language of the statute.” Id. at 56, 116 S.Ct. at 1123, (quoting Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)). “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.” Dellmuth v. Muth 491 U.S. at 231, 109 S.Ct. at 2402, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246, 105 S.Ct. 3142, 3149, 87 L.Ed.2d 171 (1985)). Instead, both the text and structure of the statute must “make[ ] it clear that the State is the [intended] defendant to the suit.” Seminole Tribe, 517 U.S. at 57, 116 S.Ct. at 1124. Congress is not required, however, to “explicitly reference to" }, { "docid": "20145156", "title": "", "text": "U.S. at —, 111 S.Ct. at 2581; Feeney, 495 U.S. at 304, 110 S.Ct. at 1872. Two events may render the Eleventh Amendment inapplicable. First, in certain cases, Congress may abrogate a state’s sovereign and/or Eleventh Amendment Immunity. Blatchford, — U.S. at —, 111 S.Ct. at 2581; Feeney, 495 U.S. at 304, 110 S.Ct. at 1872; Dellmuth v. Muth, 491 U.S. 223, 227, 109 S.Ct. 2397, 2399, 105 L.Ed.2d 181 (1989). Second, states may consent to suit in federal court, in which case Eleventh Amendment immunity is waived. Feeney, 495 U.S. at 304, 110 S.Ct. at 1872; Will, 491 U.S. at 66, 109 S.Ct. at 2309; Welch, 483 U.S. at 473, 107 S.Ct. at 2945; Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907. In the first instance, the Court has adopted “a particularly strict standard” to evaluate claims that Congress has abrogated a state’s sovereign and Eleventh Amendment immunity. Gregory, — U.S. at —, 111 S.Ct. at 2401; Feeney, 495 U.S. at 305, 110 S.Ct. at 1872; Dellmuth, 491 U.S. at 227-28, 109 S.Ct. at 2399-2400. As the Court stated in Dellmuth: To temper Congress’ acknowledged power of abrogation with due concern for the Eleventh Amendment’s role as an essential component of our constitutional structure, we have applied a simple but stringent test: “Congress may abrogate the State’s constitutionally secured im munity from suit in federal court only by making its intention unmistakably clear in the language of the statute.” ... Evidence of congressional intent must be both unequivocal and textual. 491 U.S. at 227-28, 109 S.Ct. at 2400 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171, reh’g denied, 473 U.S. 926, 106 S.Ct. 18, 87 L.Ed.2d 696 (1985)) (emphasis added); Welch, 483 U.S. at 474, 107 S.Ct. at 2946; Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 16, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981); see also Gregory, — U.S. —, 111 S.Ct. at 2406 (“in the face of ambiguity, we will not attribute to Congress an intent to intrude on State government[ ] ... regardless" }, { "docid": "9669167", "title": "", "text": "223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989); see also Atascadero v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). As its title suggests, the statute is designed to give rights to government employees, including state employees, against their employers. The act amended Title VII to extend coverage of its employment discrimination provisions to such government employees: “[A]ny individual chosen or appointed, by a person elected to public office in any State ... to be a member of the elected official’s personal staff,” as Jones and Ward were, has rights under GERA to a workplace “free from any discrimination based on ... race, color, religion, sex, or national origin.” 42 U.S.C. §§ 2000e-16c(a)(l), 2000e-16b(a)(l). GERA authorizes the EEOC to order remedies for violations of these rights, 42 U.S.C. § 2000e-16c(b)(l), including “back pay (payable by the employer ... responsible for the unlawful employment practice).” 42 U.S.C. § 2000e-16b(b)(l), cross-referencing 42 U.S.C. § 2000e-5(g) (emphasis added). A “general authorization for suit in federal court” is an insufficient expression of congressional intent to abrogate state sovereign immunity, Atascadero, 473 U.S. at 246, 105 S.Ct. 3142, as are inferences from legislative history and statutory purpose, Dellmuth, 491 U.S. at 230, 232, 109 S.Ct. 2397. But Dellmuth and Atascadero “do[ ] not preclude congressional elimination of sovereign immunity in statutory text that clearly subjects States to suit for monetary damages, though without explicit reference to state sovereign immunity or the Eleventh Amendment.” Dellmuth, 491 U.S. at 233, 109 S.Ct. 2397 (Scalia, J. concurring). GERA’s text makes congressional intent to abrogate state sovereign immunity “unmistakably clear.” Atascadero, 473 U.S. at 242, 105 S.Ct. 3142. GERA expressly covers state employees, and expressly gives them a right to collect damages “payable by the employer ” — the state. 42 U.S.C. § 2000e-5(g)(l) (emphasis added). The only way Congress could have been clearer would have been to say “this act abrogates state sovereign immunity.” But the Supreme Court has made it quite plain that such magic words are unnecessary. Twice it has considered statutes with provisions like GERA’s — giving employees a cause" }, { "docid": "22583909", "title": "", "text": "& Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). In certain circumstances, however, Congress may abrogate the states’ constitutionally secured immunity from suit in federal court. To do so, Congress must make “ ‘its intention unmistakably clear in the language of the statute.’ ” Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.” Atascadero, 473 U.S. at 246, 105 S.Ct. 3142. The CWA, RCRA, and CERCLA contain substantially identical provisions permitting citizens to sue as private attorneys general in circumstances where government authorities have, after notice, failed to take steps to remedy particular environmental harms. These provisions state that “any citizen may commence a civil action on his own behalf — (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of [the Act].” 33 U.S.C. § 1365(a)(1) (emphasis added); see also 42 U.S.C. § 6972; 42 U.S.C. § 9659. These provisions do not unequivocally express Congress’s intent to abrogate sovereign immunity and subject states to suit. Far from evidencing a Congressional intent to do away with sovereign immunity, these provisions are expressly limited by the Eleventh Amendment. See Natural Resources Defense Council v. California Dep’t of Transp., 96 F.3d 420, 423 (9th Cir.1996) (district court properly dismissed all claims under CWA against state agency on Eleventh Amendment immunity ground); Froebel v. Meyer, 13 F.Supp.2d 843, 849-50 (E.D.Wis.1998) (“[T]he plainest meaning” of language in CWA is that “the Eleventh Amendment retains some presumptive force.... ”); Rowlands v. Pointe Mouillee Shooting Club, 959 F.Supp. 422, 426 (E.D.Mich.1997) (RCRA citizen suit provision operates within the Eleventh Amendment), aff'd, 182 F.3d 918 (6th" } ]

[ { "docid": "22845460", "title": "", "text": "enter a partial summary judgment as was done in the in stant case? Paragraph (d) plainly answers this question in the negative. It continues: “It (the court) shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.” In other words, interpreting paragraph (d) as a whole, it appears plain that a summary judgment is not contemplated or authorized for any portion of a claim less than the whole. When the court is confronted with such a motion as it was in the instant case, it is authorized only to make an “order” as to the non-controverted facts, “including the extent to which the amount of damages or other relief is not in controversy.” This construction of Rule 56 is not novel. Moore in his treatise on the Federal Rules of Civil Procedure (3 Moore’s Federal Practice, 1st Ed. 1938, 3175) states: “Rule 56 (d) imposes a duty upon the court to sift tile issues and to specify which material facts are really in issue and which are not, thereby facilitating and expediting the trial. This pre-trial sifting of the issues upon a motion for summary judgment, as provided in Rule 56 (d), is quite similar to the pre-trial procedure provided in Rule 16, except that under Rule 56(d) it is compulsory, while under Rule 16 it is discretionary with the court.” This court, in the Leonard case, supra 130 F.2d at page 536, approved this interpretation by stating: “The rule is very similar to Rule 16 concerning pretrial procedure for formulation of issues by the court in conference with the parties. In fact, the drafters expressly indicated that the same purpose lay behind both.” In Audi Vision, Inc., et al. v. RCA Mfg. Co., Inc., 2 Cir., 136 F.2d 621, 147 A.L.R. 574, the court similarly compared Rule 56" } ]

[ { "docid": "19175297", "title": "", "text": "to hold otherwise, Rule 56(d) could be used to justify numerous and repetitive motions seeking to resolve limited factual issues in a piecemeal fashion. Such adjudications would not dispose of a claim or even become final until trial, and would waste judicial resources in almost every case. Parties in effect could force the court to make the type of determinations that are properly made by the court in its discretion under Rule 16. A fair reading of Rule 56(d), then, is that it does not allow a party to bring a motion for a mere factual adjudication. Rather, it allows a court, on a proper motion for summary judgment, to frame and narrow the triable issues if the court finds that such an order would be helpful to the progress of the litigation. Capitol argues that Progress Record has resisted settlement of this action, and that a partial adjudication would goad the parties to settle. Where the finding requested would not result in an enforceable judgment, the court is not convinced that settlement would be appreciably advanced thereby. Such an adjudication would simply recognize what both parties already know, that the non-movant will not be able to controvert certain facts at trial. Assuming that settlement will be advanced in the present case, however, the court finds that the policy reasons behind denying a Rule 56(d) adjudication to a movant who does not move for “true” summary judgment outweigh the settlement effect of the finding Capitol now seeks. C. Motion Under Rule 56(c) Unlike Rule 56(d), which provides for an “order” specifying undisputed facts after denial of judgment, Rule 56(c) provides for “summary judgment, interlocutory in character.” The court interprets this language as allowing the filing of a motion for summary judgment only on the issue of liability as to at least a single claim or party. The usefulness of this procedure may be seen, for example, in the case where the calculation of damages is a ministerial matter, and indeed, appeal from a finding of liability is allowed under some circumstances. See Parks v. Pavkovic, 753 F.2d at 1401-02. Capitol" }, { "docid": "1880440", "title": "", "text": "that there is no genuine issue as to any material fact.” Fed. R. Civ. P. 56(c); see Maffei v. Northern Ins. Co. of New York, 12 F.3d 892, 899 (9th Cir.1993). A genuine issue of fact exists when the nonmoving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Plaintiffs move for “partial summary judgment regarding application of Section 127.” Such a request is more appropriately brought as a motion for summary adjudication: If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court ... shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. Fed. R. Civ. P. 56(d). An order under Rule 56(d) narrows the issues and enables the parties to recognize more fully their rights, yet it permits the court to retain full power to completely adjudicate all aspects of the case when the proper time arrives. See 10A CHARLES A. Wright, Arthur R, Miller & Mary Kay KaNE, Federal Practioe And Procedure § 2737, at 455-56 (2d ed.1983). The procedure under Rule 56(d) is designed to be ancillary to a summary judgment motion. Unlike Rule 56(c), which allows for interlocutory judgment on a question of liability, Rule 56(d) does not authorize the entry of a judgment on part of a claim or the granting of partial relief. Id., § 2737, at 457. The obligation imposed on the court by Rule 56(d) to specify the uncon-troverted material facts is technically compulsory. See Woods v. Mertes, 9 F.R.D. 318, 320 (D.Del.1949). However, if the court determines that identifying indisputable facts through partial summary judgment would not materially expedite the adjudicative process, it may decline" }, { "docid": "18500254", "title": "", "text": "Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 (2d ed. 1983 & Supp.1987). Cross-motions for summary judgment do not require the court to decide the case on those motions; the court can deny both motions if both parties have failed to meet the burden of establishing no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. ITT, 674 F.Supp. at 1331; Wolf v. Maryland Casualty, 617 F.Supp. 456, 458 (S.D.Ill. 1985). B.Partial Summary Judgment Rule 56(d), F.R.Civ.P., involves situations in which the motion does not lead to a judgment on the entire case but only terminates further contest on a portion of the litigation. Because Rule 56(d) is part of the rule entitled “Summary Judgment”, the order prescribed by this rule has been referred to as “Partial Summary Judgment.” C.Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Partial Summary Judgment is not possible in federal pleading unless it disposes entirely of one or more of the counts of the complaint. Biggins v. Olt-mer Iron Works, 154 F.2d 214, 216 (7th Cir.1946); Capitol Records, Inc. v. Progress Record Distrib., 106 F.R.D. 25, 28 (N.D.Ill.1985) (Getzendanner, J.). V. DISCUSSION OF COUNTS I — IV Preferential transfers can be avoided by the trustee under § 547(b) of the Bankruptcy Code. The subsection provides as follows: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor" }, { "docid": "19175293", "title": "", "text": "of less than an entire claim. Under Rule 56(c), “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.” See generally 6 Pt. 2 J. Moore, supra, at 11 56.20[3.-2]; 10A C. Wright & A. Miller & M. Kane, supra, at § 2736. Rule 56(d) provides: If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. The two subprovisions overlap to some extent. For example, a determination on liability may be made pursuant to Rule 56(d). 10A C. Wright & A. Miller & M. Kane, supra, at § 2736, p. 447. B. Motion Under Rule 56(d) An adjudication under Rule 56(d) is clearly interlocutory and in the nature of a pretrial order. Biggins, 154 F.2d at 217; 10A C. Wright & A. Miller & M. Kane, supra, at § 2737, p. 459; 6 Pt. 2 J. Moore, supra, at ¶ 56.20[3.-2], pp. 56-1215 to 56-1217. Hence, such adjudications are clearly not “judgments,” although authorized by a rule encaptioned “Summary Judgment.” Thus, while Capitol is not entitled to summary judgment, it may under some circumstances be entitled to an order that narrows the triable issues in the case. The next question raised is whether Capitol’s present motion for “partial summary judgment” entitles it to an adjudication under Rule 56(d). (The court does not decide" }, { "docid": "3795983", "title": "", "text": "DISCUSSION As a threshold matter, the Court notes that a genuine dispute of fact regarding plaintiff’s computation of damages precludes summary judgment on that issue. Fed.R.Civ.P. 56(c). Nonetheless, “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” Id. When there is a controversy as to damages, but not as to liability, the procedure to be followed is that specified in Fed.R.Civ.P. 56(d). 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2736, at 447 (1983). Fed.R.Civ.P. 56(d) states that: [i]f on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court____shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy ____ Because this order is a pre-trial adjudication rather than a final order, “the trial court retains jurisdiction to modify the order at any time prior to the entry of a final judgment.” 10A C. Wright, supra, § 2737 at 463-4; see Dyal v. Union Bag-Camp Paper Corp., 263 F.2d 387, 395 (5th Cir. 1959). The right of either party to a jury trial on those issues that remain in dispute will not be affected. See 10A C. Wright, supra, § 2736 at 452. The District Court is empowered to specify in the pre-trial order any amount of damages which is not in controversy. 10A C. Wright, supra, § 2737, at 454-5; see Sloane v. Land, 16 F.R.D. 242 (S.D.N.Y. 1954); McDonald v. Batopilas Mining Co., 8 F.R.D. 226 (E.D.N.Y.1948). The court may also grant partial summary judgment on an affirmative defense that poses no genuine issue of fact. See First National City Bank v. Kline, 439 F.Supp. 726, 728 (S.D.N.Y.1977); see 10A C. Wright, supra, § 2737 at 462. A. Forum-Selection Clauses Forum selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be" }, { "docid": "19175292", "title": "", "text": "p. 457 n. 7 (1983 & Supp.1984), the plaintiff sought compensation for services rendered. The district court entered “partial summary judgment” as to amounts owed that were uncontested. In a thorough and well-reasoned opinion, the Seventh Circuit found that under the Federal Rules, a judgment, as opposed to an interlocutory adjudication, may not be entered on “a portion of a single claim in suit.” 154 F.2d at 216. See Triangle Ink & Color Co., Inc. v. SherwinWilliams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974) (factual discussion reveals that movant desired not only a Rule 56(d) adjudication but a final judgment as to the undisputed damages under a single claim); 6 Pt. 2 J. Moore, Moore’s Federal Practice U 56.20[3.-2] & [3.-3], pp. 56-1219 & 56-1225 (1982 & Supp.1984-85). Hence, it is clear that Capitol is not entitled to summary judgment on this motion. Framing the motion as one for partial summary judgment does not cure the fatal defect of moving for judgment on a portion of a claim. Two provisions of Rule 56 discuss the disposition of less than an entire claim. Under Rule 56(c), “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.” See generally 6 Pt. 2 J. Moore, supra, at 11 56.20[3.-2]; 10A C. Wright & A. Miller & M. Kane, supra, at § 2736. Rule 56(d) provides: If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial" }, { "docid": "19175290", "title": "", "text": "$9,009.99 is due. Propriety of Motion for Partial Summary Judgment A. Motion Under Rule 56(a) Progress Record contests the propriety of the present motion for “partial summary judgment,” which seeks judgment as to less than a single claim. On its face, Rule 56 is somewhat confusing on whether judgment may be entered on a part of one claim. It is true, as Capitol points out, that Rule 56(a) refers to “[a] party seeking to recover upon a claim” and provides that such a party may move for “summary judgment ... upon all or any part thereof.” See also Fed.R.Civ.P. 56(b). Capitol argues from this language that it is entitled to seek a judgment as to part of its one-count complaint. However, a reasonable reading of Rule 56 in the context of the Federal Rules in general supports Progress Record’s position. Rule 56(a) refers to judgments. “Judgment” is defined by the Federal Rules as an order from which an appeal lies. Fed.R.Civ.P. 54(a). At a minimum, an appeal may be taken of an adjudication disposing of a single claim or of all claims against a single party. Fed.R.Civ.P. 54(b). Additionally, under some circumstances, an appeal may be taken of a finding of liability where the computation of damages is “mechanical and uncontroversial.” Parks v. Pavkovic, 753 F.2d 1397, 1401-02 (7th Cir. 1985). To hold that judgment could be entered and an appeal taken on part of a claim would result in bifurcated proceedings that could only delay unnecessarily the progress of the litigation. In addition, Rule 56(d) implicitly establishes that summary judgment is available only for an entire claim at a minimum. That provision, as will be discussed below, allows the court to enter interlocutory orders setting forth facts that will be deemed established and uncontested at trial. The propriety of summary judgment on a portion of a claim was decided by the Seventh Circuit in a case not cited by either party. In Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946), cited in 10A C. Wright & A. Miller & M. Kane, Federal Practice and Procedure § 2737," }, { "docid": "4690216", "title": "", "text": "a matter of law. ITT, 674 F.Supp. at 1331; Wolf v. Maryland Casualty, 617 F.Supp. 456, 458 (S.D.Ill.1985). See C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 (2d ed. 1983 & Supp.1987). Partial Summary Judgment Rule 56(d), F.R.Civ.P., involves situations in which the motion does not lead to a judgment on the entire case but only terminates further contest of a portion of the litigation. Because Rule 56(d) is part of the rule entitled “Summary Judgment”, the order prescribed by this rule has been referred to as “partial summary judgment.” C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Partial Summary Judgment is possible in federal pleading when it disposes entirely of one or more of the counts of the complaint. Biggins v. Oltmer Iron Works, 154 F.2d 214, 216 (7th Cir.1946); Capitol Records, Inc. v. Progress Record Distrib., 106 F.R.D. 25, 28 (N.D.Ill.1985) (Getzendanner, J.); Triangle Ink & Color Co., Inc. v. Sherwin-Williams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974). II. The Issues to be Decided in Count I and the Counterclaim The parties seek a ruling in Count I and the Counterclaim as to whether Ramirez holds a pre-petition or post-petition claim against Pettibone. The applicability of the automatic stay to the Civil Action turns on that question. Under § 362(a)(1), the filing of a petition in bankruptcy operates as a stay of— the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title (Emphasis added). Ramirez was injured after the commencement of the related bankruptcy case. Neither of the parties contends that Ramirez could have commenced his Civil Action before the commencement of that case because he wasn’t injured until afterwards. The issue is whether the Civil Action is' nevertheless a “claim” against Debtor that “arose before" }, { "docid": "1074623", "title": "", "text": "Radio Corp., 475 U.S. 574, 585-586, 106 S.Ct. 1348, 1355-1356, 89 L.Ed.2d 538. Fed.R.Civ.P. 56(d) provides for the situation when judgment is not rendered upon the whole case, but only on a portion thereof. Because Rule 56(d) is part of the rule entitled “Summary Judgment,” the order prescribed by this rule has been referred to as “partial summary judgment.” Charles Wright, Arthur Miller, & Mary Kay Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Partial summary judgment is available only if it is possible to dispose entirely of one or more counts of the complaint. Biggins v. Oltmer Iron Works, 154 F.2d 214, 216-17 (7th Cir.1946); Capitol Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D. 25, 28-29 (N.D.Ill.1985); Triangle Ink & Color Co. v. Sherwin-Williams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974). Thus, partial summary judgment cannot be rendered here on the IDR’s motion because overruling of the first defense does not determine the other objections and permit allowance of the IDR claims on their merits. However, Rule 56 provides a method whereby a court can narrow issues and facts for trial after denying in whole or in part a motion properly brought under Rule 56. Capitol Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D. at 29. Rule 56(d) provides in part as follows: If on motion under this rule judgment is not rendered upon the whole case or-for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy ... Here, facts not in controversy are set forth in the “Undisputed Facts” section hereinabove. Based thereon, Debtor’s first objection to the IDR claim is by separate order overruled, and the IDR’s claims are allowed to stand as timely filed, although the merits of such claims must be determined. Standard" }, { "docid": "1880441", "title": "", "text": "in good faith controverted. Fed. R. Civ. P. 56(d). An order under Rule 56(d) narrows the issues and enables the parties to recognize more fully their rights, yet it permits the court to retain full power to completely adjudicate all aspects of the case when the proper time arrives. See 10A CHARLES A. Wright, Arthur R, Miller & Mary Kay KaNE, Federal Practioe And Procedure § 2737, at 455-56 (2d ed.1983). The procedure under Rule 56(d) is designed to be ancillary to a summary judgment motion. Unlike Rule 56(c), which allows for interlocutory judgment on a question of liability, Rule 56(d) does not authorize the entry of a judgment on part of a claim or the granting of partial relief. Id., § 2737, at 457. The obligation imposed on the court by Rule 56(d) to specify the uncon-troverted material facts is technically compulsory. See Woods v. Mertes, 9 F.R.D. 318, 320 (D.Del.1949). However, if the court determines that identifying indisputable facts through partial summary judgment would not materially expedite the adjudicative process, it may decline to do so. See 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, supra, § 2737, at 460. Here, the inquiry does not depend on facts. The facts attending the enactment of Section 127 are not disputed. The interpretation of legislation generally presents an issue of law appropriate for resolution by the Court as a matter of law. See City of St. Louis v. Department of Transportation, 936 F.2d 1528, 1535 (8th Cir.1991) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 864-66, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); United States v. Carr, 66 F.3d 981, 983 (8th Cir.1995); United States v. Moore, 38 F.3d 977, 979 (8th Cir.1994); Prudential Ins. Co. v. Rand & Reed Powers Partnership, 972 F.Supp. 1194, 1202 (N.D.Iowa 1997) (citing Carr and Moore for the principle: “[Sjtat-utory interpretation-particularly interpretation of the effect of a statute where facts are undisputed-is primarily a legal question amenable to summary judgment.”). A motion that presents only a question of law is appropriately resolved on summary adjudication. See Hulmes" }, { "docid": "15574832", "title": "", "text": "provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Fed.R.Civ.P. 56(e). Thus, the burden of the adverse party to show the existence of a factual dispute is not fulfilled merely by asserting that a genuine issue exist for trial. Chitwood v. Feaster, 54 F.R.D. 204 (N.D.W.Va.), vacated on other grounds, 468 F.2d 359 (4th Cir.1972). Of course, the moving parties’ affidavits may be “opposed by depositions, answers to interrogatories, or further affidavits.” Fed.R.Civ.P. 56(e). Furthermore, when deciding whether summary judgment is appropriate, the court may discover specific factual disputes that have not been asserted by either party. Fed.R.Civ.P. 56(a) and (b) authorize either party to move for summary judgment in his favor “upon all or any part” of a claim by a claimant or a defending party. See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2736 (1983). Thus, summary judgment may be granted as to one or more claims and denied as to others. In addition, the last sentence of Rule 56(c) provides: “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” If an interlocutory summary judgment is appropriate, the case will proceed to trial for a determination of damages. Id. In this action, the plaintiffs allege that the defendants have violated five sections of the FDCPA. All of the named plaintiffs, as well as the class and subclass members, seek to impose liability on MSF and Costen. In addition, individual claims are asserted directly against Kirksey by West, Lee by Walker, and Price by Jackson and Preston. In ruling on the parties’ motions, all allegations of identical violations will be combined together in separate sections to determine the liability, if any, of all the defendants, except Costen, to all the named plaintiffs and class and subclass members. The court will turn last to the question of Cos-ten’s liability. 8." }, { "docid": "19175291", "title": "", "text": "a single claim or of all claims against a single party. Fed.R.Civ.P. 54(b). Additionally, under some circumstances, an appeal may be taken of a finding of liability where the computation of damages is “mechanical and uncontroversial.” Parks v. Pavkovic, 753 F.2d 1397, 1401-02 (7th Cir. 1985). To hold that judgment could be entered and an appeal taken on part of a claim would result in bifurcated proceedings that could only delay unnecessarily the progress of the litigation. In addition, Rule 56(d) implicitly establishes that summary judgment is available only for an entire claim at a minimum. That provision, as will be discussed below, allows the court to enter interlocutory orders setting forth facts that will be deemed established and uncontested at trial. The propriety of summary judgment on a portion of a claim was decided by the Seventh Circuit in a case not cited by either party. In Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946), cited in 10A C. Wright & A. Miller & M. Kane, Federal Practice and Procedure § 2737, p. 457 n. 7 (1983 & Supp.1984), the plaintiff sought compensation for services rendered. The district court entered “partial summary judgment” as to amounts owed that were uncontested. In a thorough and well-reasoned opinion, the Seventh Circuit found that under the Federal Rules, a judgment, as opposed to an interlocutory adjudication, may not be entered on “a portion of a single claim in suit.” 154 F.2d at 216. See Triangle Ink & Color Co., Inc. v. SherwinWilliams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974) (factual discussion reveals that movant desired not only a Rule 56(d) adjudication but a final judgment as to the undisputed damages under a single claim); 6 Pt. 2 J. Moore, Moore’s Federal Practice U 56.20[3.-2] & [3.-3], pp. 56-1219 & 56-1225 (1982 & Supp.1984-85). Hence, it is clear that Capitol is not entitled to summary judgment on this motion. Framing the motion as one for partial summary judgment does not cure the fatal defect of moving for judgment on a portion of a claim. Two provisions of Rule 56 discuss the disposition" }, { "docid": "19175294", "title": "", "text": "of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. The two subprovisions overlap to some extent. For example, a determination on liability may be made pursuant to Rule 56(d). 10A C. Wright & A. Miller & M. Kane, supra, at § 2736, p. 447. B. Motion Under Rule 56(d) An adjudication under Rule 56(d) is clearly interlocutory and in the nature of a pretrial order. Biggins, 154 F.2d at 217; 10A C. Wright & A. Miller & M. Kane, supra, at § 2737, p. 459; 6 Pt. 2 J. Moore, supra, at ¶ 56.20[3.-2], pp. 56-1215 to 56-1217. Hence, such adjudications are clearly not “judgments,” although authorized by a rule encaptioned “Summary Judgment.” Thus, while Capitol is not entitled to summary judgment, it may under some circumstances be entitled to an order that narrows the triable issues in the case. The next question raised is whether Capitol’s present motion for “partial summary judgment” entitles it to an adjudication under Rule 56(d). (The court does not decide whether Capitol could have framed its pleadings or this motion in such a way as to allow it to move for judgment as to a single claim or party.) The Biggins Court implied that a motion could be brought originally under Rule 56(d), explaining that “[w]hen the court is confronted with such a motion [for partial summary judgment on a portion of a claim], it is authorized only to make an ‘order’ as to the non-contro verted facts____” 154 F.2d at 217. However, other authorities directly confronted with the issue reach the opposite conclusion. First, the language of Rule 56(d), by referring to failure to achieve judgment “on a motion under this rule,” implies that Rule 56(d) itself does not authorize the filing of a motion for a partial adjudication. One court in this district has interpreted Rule 56(d) as applying only where a party has moved unsuccessfully under Rule 56(a) and (c). SFM Corp. v. Sundstrand Corp., 102 F.R.D. 555, 558-59 (N.D.Ill.1984); Oberweis Dairy v. Associated Milk Producers, Inc., 553 F.Supp. 962, 970-71 &" }, { "docid": "13723599", "title": "", "text": "there is not a genuine issue for trial and summary judgment should be granted. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Rule 56(d), F.R.Civ.P., involves situations in which the motion does not lead to a judgment on the entire case but only terminates further contest on a portion of the litigation. Because Rule 56(d) is part of the rule entitled “Summary Judgment,” the order prescribed by this rule has been referred to as “Partial Summary Judgment.” C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Summary Judgment is allowed if the order disposes entirely of one or more of the counts of the complaint, or the entire complaint itself. Biggins v. Oltmer Iron Works, 154 F.2d 214, 216 (7th Cir.1946); Capitol Records, Inc. v. Progress Record Distributing Inc., 106 F.R.D. 25, 28 (N.D.Ill.1985) (Getzendanner, J.). IV. DISCUSSION A. Proof of claim When a party properly files a proof of claim executed in accord with the Bankruptcy Rules, that proof of claim constitutes prima facie evidence of the validity and amount of that claim, Federal Rules of Bankruptcy Civil Procedure 3001(f); In re Kham & Nate’s Shoes No. 2, Inc., 97 B.R. 420, 424 (Bankr.N.D.Ill.1989), unless debtor or other party-in-interest objects. 11 U.S.C. § 502(a). Because a valid proof of claim is prima facie evidence of its validity, the burden is on the objector to introduce evidence rebutting the presumption. In re Fidelity Holding Co., Ltd., 837 F.2d 696 (5th Cir.1988); In re BRI Corp., 88 B.R. 71 (Bankr.E.D.Pa.1988); In re Horizon Machinery & Engineering Corp., 54 B.R. 669, 670 (Bkrtcy.N.D.Ill.1985) citing Wilson v. Huffman, 712 F.2d 206, 212 (5th Cir.1983). Filing an objection to the claim without more is insufficient to challenge the rebut-table presumption. In re Glenn, 100 B.R. 763 (Bankr.W.D.Pa.1989). Once the objector has produced some evidence disputing the validity of a claim, the burden shifts to the claimant. In re Missionary Baptist Foundation of America, Inc., 818 F.2d 1135 (5th Cir.1987); In re Lampert, 61 B.R. 785 (Bankr.W.D.Wis.1986). The burden of establishing a valid claim ultimately" }, { "docid": "1074622", "title": "", "text": "in Fed.R.Civ.P. 56 (Fed.R.Bankr.P. 7056). Rule 56(c) provides in pertinent part: [T]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The primary purpose for granting a summary judgment motion is to avoid unnecessary trials when there is no genuine issue of material fact in dispute. Farries v. Stanadyne/Chicago Div., 832 F.2d 374, 378 (7th Cir.1987) (quoting Wainwright Bank & Trust Co. v. Railroadmen’s Federal Sav. & Loan Assoc., 806 F.2d 146, 149 (7th Cir.1986)). The burden is on the moving party to show that no genuine issue of material fact is in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548-2552, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-586, 106 S.Ct. 1348, 1355-1356, 89 L.Ed.2d 538. Fed.R.Civ.P. 56(d) provides for the situation when judgment is not rendered upon the whole case, but only on a portion thereof. Because Rule 56(d) is part of the rule entitled “Summary Judgment,” the order prescribed by this rule has been referred to as “partial summary judgment.” Charles Wright, Arthur Miller, & Mary Kay Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Partial summary judgment is available only if it is possible to dispose entirely of one or more counts of the complaint. Biggins v. Oltmer Iron Works, 154 F.2d 214, 216-17 (7th Cir.1946); Capitol Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D. 25, 28-29 (N.D.Ill.1985); Triangle Ink & Color Co. v. Sherwin-Williams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974). Thus, partial summary judgment cannot be rendered here on the IDR’s motion because overruling of the first defense does not determine the other objections and permit allowance of the IDR claims on their merits. However, Rule 56 provides a" }, { "docid": "18500253", "title": "", "text": "at 2510; Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. The Court should not “weigh the evidence.” However, “[i]f evidence opposing summary judgment is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11; Valley Liquors, 822 F.2d at 659. When the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial and summary judgment should be granted. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. A.Cross Motions for Summary Judgment Although both parties argue for summary judgment, that does not by itself indicate that there are no genuine issues of material fact; the court must rule on each motion separately in determining whether each judgment may be entered in accordance with applicable principles. ITT Indus. Credit Co. v. D.S. America, Inc., 674 F.Supp. 1330, 1331 (N.D.Ill.1987) (Shadur, J.) District 12, United Workers of Am. v. Peabody Coal, Co., 602 F.Supp. 240, 242 (S.D.Ill.1985). See C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 (2d ed. 1983 & Supp.1987). Cross-motions for summary judgment do not require the court to decide the case on those motions; the court can deny both motions if both parties have failed to meet the burden of establishing no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. ITT, 674 F.Supp. at 1331; Wolf v. Maryland Casualty, 617 F.Supp. 456, 458 (S.D.Ill. 1985). B.Partial Summary Judgment Rule 56(d), F.R.Civ.P., involves situations in which the motion does not lead to a judgment on the entire case but only terminates further contest on a portion of the litigation. Because Rule 56(d) is part of the rule entitled “Summary Judgment”, the order prescribed by this rule has been referred to as “Partial Summary Judgment.” C.Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Partial Summary Judgment is not possible in federal pleading unless it disposes entirely of one or" }, { "docid": "13723598", "title": "", "text": "motions, and must identify those portions of the “pleadings, depositions, answers to interrogatories, and affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. However, once the motion for summary judgment is made and supported as described above, Rule 56(e) provides that a party opposing the motion may not rest upon the mere allegations or denials in his pleading, his response must demonstrate specific facts showing a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. The Court should not “weigh the evidence.” However, “[i]f evidence opposing summary judgment is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511; Valley Liquors, 822 F.2d at 659. When the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is not a genuine issue for trial and summary judgment should be granted. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Rule 56(d), F.R.Civ.P., involves situations in which the motion does not lead to a judgment on the entire case but only terminates further contest on a portion of the litigation. Because Rule 56(d) is part of the rule entitled “Summary Judgment,” the order prescribed by this rule has been referred to as “Partial Summary Judgment.” C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Summary Judgment is allowed if the order disposes entirely of one or more of the counts of the complaint, or the entire complaint itself. Biggins v. Oltmer Iron Works, 154 F.2d 214, 216 (7th Cir.1946); Capitol Records, Inc. v. Progress Record Distributing Inc., 106 F.R.D. 25, 28 (N.D.Ill.1985) (Getzendanner, J.). IV. DISCUSSION A. Proof of claim When a party properly files a proof of claim executed in accord with the Bankruptcy Rules, that proof of claim constitutes prima facie" }, { "docid": "19175298", "title": "", "text": "appreciably advanced thereby. Such an adjudication would simply recognize what both parties already know, that the non-movant will not be able to controvert certain facts at trial. Assuming that settlement will be advanced in the present case, however, the court finds that the policy reasons behind denying a Rule 56(d) adjudication to a movant who does not move for “true” summary judgment outweigh the settlement effect of the finding Capitol now seeks. C. Motion Under Rule 56(c) Unlike Rule 56(d), which provides for an “order” specifying undisputed facts after denial of judgment, Rule 56(c) provides for “summary judgment, interlocutory in character.” The court interprets this language as allowing the filing of a motion for summary judgment only on the issue of liability as to at least a single claim or party. The usefulness of this procedure may be seen, for example, in the case where the calculation of damages is a ministerial matter, and indeed, appeal from a finding of liability is allowed under some circumstances. See Parks v. Pavkovic, 753 F.2d at 1401-02. Capitol has not expressly moved for summary judgment on the issue of liability on the one-count complaint. However, the court construes the motion as such. Since the admitted liability is greater than the amount of disputed credits, the court grants summary judgment against Progress Record and in favor of Capitol on the issue of liability under the complaint. The only remaining issue is the amount of damages. A trial date will be set at the status hearing of April 10, 1985 to resolve the issue of damages. Conclusion The court grants Capitol’s motion for partial summary judgment in part. In specific, the court grants Capitol’s motion on the issue of liability only. On the status hearing of April 10, 1985, the court will set a trial date to resolve the issue of damages. It is so ordered." }, { "docid": "4690215", "title": "", "text": "summary judgment is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511, Valley Liquors, 822 F.2d at 659. Cross Motions for Summary Judgment Although both parties argue for summary judgment, that does not by itself indicate that there are no genuine issues of material fact; the court must rule on each motion separately in determining whether each judgment may be entered in accordance with applicable principles. ITT Indus. Credit Co. v. D.S. America, Inc., 674 F.Supp. 1330, 1331 (N.D.Ill.1987) (Shadur, J.); District 12, United Workers of Am. v. Peabody Coal, Co., 602 F.Supp. 240, 242 (S.D.Ill.1985). See C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 (2d ed. 1983 & Supp.1987). Cross-motions for summary judgment do not require the court to decide the case on those motions; the court can deny both motions if both parties have failed to meet the burden of establishing no genuine issue of material fact exists and that they are entitled to judgment as a matter of law. ITT, 674 F.Supp. at 1331; Wolf v. Maryland Casualty, 617 F.Supp. 456, 458 (S.D.Ill.1985). See C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 (2d ed. 1983 & Supp.1987). Partial Summary Judgment Rule 56(d), F.R.Civ.P., involves situations in which the motion does not lead to a judgment on the entire case but only terminates further contest of a portion of the litigation. Because Rule 56(d) is part of the rule entitled “Summary Judgment”, the order prescribed by this rule has been referred to as “partial summary judgment.” C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2737 (2d ed. 1983 & Supp.1987). Partial Summary Judgment is possible in federal pleading when it disposes entirely of one or more of the counts of the complaint. Biggins v. Oltmer Iron Works, 154 F.2d 214, 216 (7th Cir.1946); Capitol Records, Inc. v. Progress Record Distrib., 106 F.R.D. 25, 28 (N.D.Ill.1985) (Getzendanner, J.); Triangle Ink & Color Co., Inc. v. Sherwin-Williams Co., 64 F.R.D. 536, 537-38 (N.D.Ill.1974). II." }, { "docid": "19175295", "title": "", "text": "whether Capitol could have framed its pleadings or this motion in such a way as to allow it to move for judgment as to a single claim or party.) The Biggins Court implied that a motion could be brought originally under Rule 56(d), explaining that “[w]hen the court is confronted with such a motion [for partial summary judgment on a portion of a claim], it is authorized only to make an ‘order’ as to the non-contro verted facts____” 154 F.2d at 217. However, other authorities directly confronted with the issue reach the opposite conclusion. First, the language of Rule 56(d), by referring to failure to achieve judgment “on a motion under this rule,” implies that Rule 56(d) itself does not authorize the filing of a motion for a partial adjudication. One court in this district has interpreted Rule 56(d) as applying only where a party has moved unsuccessfully under Rule 56(a) and (c). SFM Corp. v. Sundstrand Corp., 102 F.R.D. 555, 558-59 (N.D.Ill.1984); Oberweis Dairy v. Associated Milk Producers, Inc., 553 F.Supp. 962, 970-71 & n. 16 (N.D.Ill.1982); Mendenhall v. Barber-Greene Company, 531 F.Supp. 947, 948 (N.D.Ill.1981) (“Rule 56(d) is not an independent provision permitting the singling out of limited issues on which the Court’s advice may be obtained.”); but see Bonda’s Veevoederfabriek, Provimi, B.V. v. Provimi, Inc., 425 F.Supp. 1034, 1036 (E.D.Wis.1970). Second, commentators on Rule 56(d) have indicated that its procedures are “ancillary to a motion for summary judgment,” 10A C. Wright & A. Miller & Kane, supra, at § 2737, p. 457, and designed “to salvage whatever constructive results have come from the judicial effort” to dispose of a motion for summary judgment, 6 Pt. 2 J. Moore, supra, at ¶ 56.20[3.-3], p. 56-1223. The court agrees with the logic of these cases and commentators that Rule 56(d) provides a method whereby a court can narrow issues and facts for trial after denying in whole or in part a motion properly brought under Rule 56’s other provisions; it does not create a vehicle for the type of motion brought by Capitol in this case. Were the court" } ]

[ { "docid": "23543767", "title": "", "text": "Hague Convention litigation and the parties’ contentions. We recently considered the Hague Convention and its domestic implementing statute, ICARA, in Blondín v. Dubois, 189 F.3d 240 (2d Cir. 1999). As we there noted, in an ICARA suit “ ‘a United States District Court has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim.’ ” Id. at 245 (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993)); see Hague Convention, Art. 19; ICARA, 42 U.S.C. § 11601(b)(4). “The abduction claim is limited, initially, to a determination of whether the defendant has “wrongfully removed or retained’ the child; on this issue the plaintiff bears the burden of proof.” Blondin, 189 F.3d at 245 (quoting 42 U.S.C. § 11603(e)(1)(A)). In the pending case, Diorinou contends that, in October 2000, Mezitis wrongfully removed the children from Greece, which she contends is their “habitual residen[ce]” within the meaning of Article 3 of the Convention. On the other hand, Mezitis contends that, in September 1995 and thereafter, Diorinou wrongfully retained the children in Greece, that their habitual residence at that time was (and, since then, is) New York, and that her prior wrongful retention precludes a finding that his subsequent removal of the children was wrongful. These conflicting contentions require an understanding of the relevant provisions of the Convention, analysis of these provisions and of ICARA as applied to this case, and consideration of the deference an ICARA court owes to the relevant adjudications of other courts. Hague Convention provisions. Under Article 3 of the Convention a “removal” or a “retention” is “wrongful” if (a) it is in breach of rights of custody attributed to a person ..., either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Article 12 requires the return of a child wrongfully retained or removed: Where a" } ]

[ { "docid": "17849615", "title": "", "text": "return. The petitioner must first establish “by a preponderance of the evidence ... that the child has been wrongfully removed or retained within the meaning of the Convention.” 42 U.S.C. § 11603(e)(1)(A). In order to show that the removal or retention was “wrongful,” the petitioner must establish that the removal or retention: a) ... is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3, 51 Fed.Reg. at 10,498; see also Croll v. Croll, 229 F.3d at 137. Once a petitioner has established that the retention or removal was wrongful and in violation of the petitioner’s custodial rights, “the court must order the child’s return to the country of habitual residence unless the respondent demonstrates that one of four narrow exceptions apply.” Croll v. Croll, 229 F.3d at 138; see 42 U.S.C. § 11601(a)(4). Two of these exceptions must be proved by clear and convincing evidence: (1) that “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” pursuant to Article 13(b) of the Convention; or (2) that the child’s return “would not be permitted by the fundamental principles ... relating to the protection of human rights and fundamental freedoms,” pursuant to Article 20 of the Convention. See Blondin v. Dubois, 189 F.3d at 245. The other two exceptions set forth in the Convention need be proved only by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(B). These exceptions to the presumption of repatriation are either that: (1) “judicial proceedings were not commenced within one year of the child’s abduction and the child is settled in [her] new environment, pursuant to Article 12 of the Convention;” or (2) that" }, { "docid": "22066982", "title": "", "text": "of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? In this case, the answer to the first question is clear. Arnon claims that Mi-chal wrongfully retained the children from the moment on April 17, 1998, when she asked the Los Angeles County Superior Court to grant her custody of them. The district court denied Arnon’s petition based on its answer to the second question: It found that as of that date, the children’s “habitual residence” was in the United States, not Israel. See Mozes v. Mozes, 19 F.Supp.2d 1108, 1116 (C.D.Cal.1998). Our central task is to review this finding, which we do immediately below. In the interest of judicial economy, and in keeping with the policy of expediting Hague Convention cases, we also address the third and fourth questions below. See Part VI infra. Ill We begin by identifying the role of an appellate court in reviewing a determination of habitual residence under the Hague Convention. In doing so, we are mindful that Congress has emphasized “the need for uniform international interpretation of the Convention.” 42 U.S.C. § 11601(b)(3)(B). The Perez-Vera Report describes “habitual residence” as “a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile.” Perez-Vera Report at § 66. In seeking to understand this “well-established concept,” id., we discover that although the term “habitual residence” appears throughout the various Hague Conventions, none of them defines it. As one commentary explains, “this has been a matter of deliberate policy, the aim being to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems.” J.H.C. Morris, Dicey and Morris on the Conflict of Laws 144 (10th ed. 1980) [“Dicey & Morris”]. Clearly," }, { "docid": "11188881", "title": "", "text": "taken to or retained in another Contracting State. Department of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10,494, 10,504 (Mar. 26, 1986) (emphasis added). In addition, a court faced with a Hague petition must keep the following important principle in mind: A Hague Convention case is not. a child custody case. Rather, a Hague Convention case is more akin to a provisional remedy — to determine if the child was wrongfully removed or kept away from his or her habitual residence, and if so, then to order the child returned to that nation. The merits of the child custody case — what a parent’s custody and visitation rights should be — are questions that are reserved for the courts of the habitual residence. James D. Garbolino, Fed. Judicial Ctr., The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges ix (2012). Accordingly, a Hague Convention case asks the following questions in this order: (1) When did the removal or retention of the child occur? (2) In what State was the child habitually resident immediately prior to the removal or retention? (3) Was the removal or retention in breach of the custody rights of the petitioning parent under the law of the State of the child’s habitual residence? and (4) Was the petitioning parent exercising those rights at the time of the unlawful removal or retention? See Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir.2006); Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.2001). The first two questions are factual inquiries centering on the determination of the child’s habitual residence; the second two questions involve both legal and factual inquiries regarding the left-behind parent’s custody rights under the law of the State of the child’s habitual residence and whether the parent was actually exercising those rights at the time of the removal or retention. 1. An anomaly in Derek’s Hague Convention petition We note at the outset that this is not a case of wrongful removal. Derek does not argue, nor could he, that Mary’s move with JMR from" }, { "docid": "9992106", "title": "", "text": "or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Hague Convention, art. 3, T.I.A.S. No. 11,-670, at 2. Thus, the petitioner is required to establish, by a preponderance of the evidence, that his children were “wrongfully removed or retained within the meaning of the Convention.” 42 U.S.C. § 11603(e)(1)(A). Therefore, in order to prevail, Juan had to prove that: (1) the children were “habitually resident” in Mexico at the time Melissa removed them to the United States; (2) the removal was in breach of Juan’s custody rights under Mexican law; and (3) he had been exercising those rights at the time of removal. Hague Convention, art. 3, T.I.A.S. No. 11,-670, at 2. Because the district court determined that the habitual residence of the children had not changed to Mexico, the dispositive issue on this appeal is whether the prior United States habitual residence of the children had been abandoned and a new habitual residence in Mexico had been established. Before addressing that issue, however, we must determine the appropriate standard of review. A. Standard of Review The standard of review is an issue of first impression in this circuit. Most of the circuits that have reached this issue have decided on a mixed standard, reviewing the district court’s findings of fact for clear error and its legal determinations and application of the law to the facts de novo. Silverman v. Silverman, 338 F.3d 886, 896-97 (8th Cir.2003)(en banc); Miller v. Miller, 240 F.3d 392, 399 (4th Cir.2001); Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001); Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.2001); England v. England, 234 F.3d 268, 270 (5th Cir.2000); Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.1996); Feder v. Evans-Feder," }, { "docid": "4230699", "title": "", "text": "gives legal content to a situation which was modified by those very actions which [the Convention] is intended to prevent.” Id. Accordingly, “a refusal to restore a child to its own environment after a stay abroad to which the person exercising the right of custody had consented must be put in the same category” under the Convention as situations where a person entitled to possess a child removes or retains it outside of its “habitual environment.” Id. at ¶ 11. The Convention uses the phrases “wrongful removal or retention” and “right of custody” as terms of art. A removal or retention is “wrongful” under the Convention when (1) “it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and” (2) “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Convention art. 3. The Convention considers “rights of custody [to] include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Convention art. 5(a). These rights differ from “rights of access,” which “include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Convention art. 5(b). The Convention inquiry, then, consists of three elements, which the petitioner must establish by a preponderance of the evidence. See 42 U.S.C. § 11603(e)(1). First, the petitioner must show that the respondent removed or retained the child somewhere other than the child’s habitual residence. See, e.g., Whiting, 391 F.3d at 546-51; Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2002). If so, the question becomes whether the removal or retention violated the petitioner’s “rights of custody” under the habitual-residence nation’s laws. See, e.g., Fawcett, 326 F.3d at 498-501; Sealed Appellant, 394 F.3d at 343. These rights need not be enshrined in a formal custody order issued before the removal or retention;" }, { "docid": "210769", "title": "", "text": "that: the removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised ... or would have been so exercised but for the removal or retention. Hague Convention, art. 3. “If a petitioner shows he was wrongfully removed, the court must order the child’s return to the country of habitual residence unless the respondent demonstrates that one of the four narrow exceptions apply.” Croll v. Croll, 229 F.3d 133, 138 (2d Cir.2000) (citing 42 U.S.C. § 11601(a)(4)). Two of the four narrow exceptions must be established by clear and convincing evidence — -“either that ‘there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,’ or that return of the child “would not be permitted by the fundamental principles ... relating to the protection of human rights and fundamental freedoms.’ ” See Blondín, 189 F.3d at 245 (quoting Hague Convention, arts. 13(b), 20); see also 42 U.S.C. § 11603(e)(2)(A). The two remaining exceptions — either that the proceedings were commenced over a year after the child’s removal or that the petitioner was not actually exercising custody rights at the time of the removal — need only be established by a preponderance of the evidence. See Blondin, 189 F.3d at 245-46 (discussing the Hague Convention, arts. 12, 13(a)); see also 42 U.S.C. § 11603(e)(2)(B). Thus, relief is available to a petitioner under the Hague Convention and ICARA only if the respondent’s removal was wrongful and no exceptions apply. Wrongful removal occurs if a child is removed in violation of “rights of custody” attributed to a person under the law of the State of the child’s habitual residence. See Hague Convention, art. 3. Petitioners enjoyed specific rights as parents of John, Chloe, and Aimee under Australian law. (Exhs.l, 2.)" }, { "docid": "20650547", "title": "", "text": "under the Convention by filing a petition in a court of the jurisdiction in which the child is located. 42 U.S.C. § 11603(b). To obtain an order for the child’s return under the Hague Convention, the petitioner bears the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under Article 3. 42 U.S.C. § 11603(e)(1)(A). Under Article 3 of the Hague Convention, the removal or retention of a child is “wrongful” where: a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3. A petitioner cannot claim that the removal or retention of a child is “wrongful” under the Hague Convention unless “the child to whom the petition relates is ‘habitually resident’ in a State signatory to the Convention and has been removed to or retained in a different State. ” Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir.2005) (emphasis added); see also Miller v. Miller, 240 F.3d 392, 398 (4th Cir.2001) (requiring petitioner to prove that children were habitually resident in a country other than the one to which they were removed). Determination of a child’s habitual residence immediately before the alleged wrongful removal or retention is therefore a threshold question in deciding a case under the Hague Convention. Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir.1995). Thus, we have noted that wrongful removal or retention claims under Article 3 of the Convention typically raise four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual" }, { "docid": "18221411", "title": "", "text": "to any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases. See Feder, 63 F.3d at 221. The Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court. See Hague Convention, art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”). Under article 3 of the Convention, the removal or retention of a child is “wrongful” where: a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3. To obtain an order for the child’s return, the petitioner bears the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under article 3. 42 U.S.C. § 11603(e)(1)(A). If this burden is met and the petition is filed within the appropriate time frame, the Convention requires courts to “order the return of the child forthwith.” Hague Convention, art. 12. Wrongful removal or retention claims under article 3 of the Convention typically raise four issues for analysis: when the removal or retention at issue occurred, the country in which the child was habitually resident prior to the removal or retention, whether the removal or retention breached the custody rights of the petitioner, and whether the petitioner was exercising those custody rights at the time of the removal or retention. See Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.2001); see also Feder, 63 F.3d at 225 (holding wrongful retention inquiry centers on whether petitioner’s custody rights under law of country of habitual residence were breached by the retention, and whether petitioner was exercising those" }, { "docid": "22456508", "title": "", "text": "was habitually resident immediately before the removal or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Hague Convention, art. 3. Thus, in order to prevail on a claim under the Hague Convention a petitioner must show that (1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention. The petitioner must establish these requirements by a preponderance of the evidence. 42 U.S.C. § 11603(e)(1)(A). Because the district court concluded that Eden retained the United States as his habitual residence and thus the protection of the Hague Convention could not be invoked, we must begin our analysis by considering the meaning of “habitually resident” under the Convention. 1. The Hague Convention, itself, does not provide any definition of “habitually resident.” See Beaumont & MoEleavy, supra, at 89; see also Pérez-Vera Report, supra, at 441, ¶ 53 (“Following a long-established tradition of the Hague Conference, the Convention avoided defining its terms .... ”). We are informed, however, by the opinions of sister Circuits that have already considered the issue. See, e.g., Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir.2003) (habitual residence to be determined by focusing on the settled purpose from the child’s perspective and parental intent); Miller v. Miller, 240 F.3d 392, 400 (4th Cir.2001) (habitual residence to be determined on a “case-by-case basis” after “a fact specific inquiry”); Mozes v. Mozes, 239 F.3d 1067, 1073-81 (9th Cir.2001) (habitual residence to be determined by examining intentions of those entitled" }, { "docid": "20243149", "title": "", "text": "mindful of determining a child’s habitual residence in an expeditious manner, as the Convention and the ICARA require. It may be appropriate for district courts to consider local rules or administrative operating procedures that would ensure expedited consideration. Under the operative provision of the Convention, a petitioner is required to establish, by a preponderance of the evidence, that her child was “wrongfully removed or retained within the meaning of the Convention.” 42 U.S.C. § 11603(e)(1)(A). Thus, in order to prevail, Ms. Chafin must show that: (1) E.C. was a habitual resident of Scotland immediately before retention in the United States, (2) the retention was in breach of Ms. Chafin’s custody rights under Scottish law, and (3) Ms. Chafin had been exercising her custody rights at the time of retention. Convention, art. 3. The court’s inquiry is limited to the abduction claim, not the underlying custody issues. See 42 U.S.C. § 11601(b)(4). Importantly, we employ a mixed standard of review for determining habitual residence under the Convention. Ruiz v. Tenorio, 392 F.3d 1247, 1252 (11th Cir.2004) (per curiam). Accordingly, we review the district court’s findings of fact for clear error and its legal determinations and application of the law to the facts de novo. Id. Further, we have explained that when analyzing the question of habitual residence, after an initial finding that parents lack a settled intent to abandon their child’s prior habitual residence for a new one, the burden on the party asserting a change in habitual residence increases. Id. at 1254-55. In such cases, courts should be hesitant to find a change in habitual residence unless the facts point “unequivocally to a change,” or the court can confidently conclude that the child’s attachments have changed such that returning them to the original forum would be extremely disruptive. Id. at 1255; see Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). III. Mr. Chafin argues that the district court clearly erred in finding that he retained E.C.’s U.K. and U.S. passports because Ms. Chafin had E.C.’s U.S. passport and could have returned to Scotland with E.C. but chose not to" }, { "docid": "23489030", "title": "", "text": "to the state court’s determination of the various issues involved in the state custody suit because the issues relevant to the adjudication of a Hague Convention petition are distinct from those relevant to a custody determination under state law. The district court erred in determining that Jeremiah’s claim for custody was substantially similar to his Hague Convention claim. As a result, the proceedings are not “parallel,” as required for a stay under Colorado River, see Nakash, 882 F.2d at 1416, nor will an adjudication of custody on the merits resolve all necessary issues, see Intel, 12 F.3d at 913 n. 4 (“[T]he requirement of ‘parallel’ state court proceedings implies that those proceedings are sufficiently similar to the federal proceedings to provide relief for all of the parties’ claims.”) (citation omitted). The state court’s custody determination did not resolve several of the issues critical to the disposition of a Hague Convention petition. In Mozes, we held that a court adjudicating a Hague Convention petition must “answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of removal or retention?” 239 F.3d at 1070. Although there may be some overlap between the second and third questions and the determinations under California law of a child’s “home state,” see Cal. Fam.Code §§ 3402, 3421, and of the best interest of the child, the Hague Convention inquiries are nevertheless distinct. In Mozes, we suggested that “habitual residence” has its own meaning, uniform among signatories to the Convention and distinct from local legal concepts. See Mozes, 239 F.3d at 1071. We also distinguished “wrongful removal” under the Hague Convention from more holistic custody inquiries regarding the best interests of the child: “It is important to understand that ‘wrongful removal’ is a legal term strictly defined in the Convention. It does not require an" }, { "docid": "14098723", "title": "", "text": "Hague Convention on the Civil Aspects of International Child Abduction is intended to prevent “the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child.” Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir.2001) (citing Elisa Perez-Vera, Explanatory Report, ¶ 11, in 3 Hague Conference Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 426 (1982)). The Convention has been implemented by Congress through the ICARA, 42 U.S.C. § 11601, et seq. The Convention’s focus is not the underlying merits of a custody dispute but instead whether a child should be returned to a country for custody proceedings under that country’s domestic law. Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir.2004) (Holder II). Under Article 3 of the Convention, the removal or retention of a child is “wrong-M” where: a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the Child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3, 19 I.L.M. at 1501. In Mozes, we stated that a court applying this provision must answer four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? 239 F.3d at 1070; see also Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1182 (9th Cir.2002). As was true in Mozes, the district court here denied Dimitris’ petition based on its answer to the second question: it found that as of April 23, 2004, the children’s “habitual residence”" }, { "docid": "20650548", "title": "", "text": "child to whom the petition relates is ‘habitually resident’ in a State signatory to the Convention and has been removed to or retained in a different State. ” Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir.2005) (emphasis added); see also Miller v. Miller, 240 F.3d 392, 398 (4th Cir.2001) (requiring petitioner to prove that children were habitually resident in a country other than the one to which they were removed). Determination of a child’s habitual residence immediately before the alleged wrongful removal or retention is therefore a threshold question in deciding a case under the Hague Convention. Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir.1995). Thus, we have noted that wrongful removal or retention claims under Article 3 of the Convention typically raise four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? See Baxter, 423 F.3d at 368 (citing Mazes v. Mazes, 239 F.3d 1067, 1070 (9th Cir.2001)). Because the parties stipulated that Karkkainen had rights of custody under Finnish law that she. was exercising prior to -Maria’s retention, only the first two issues are in contention on this appeal. Even when a court finds wrongful removal or retention, it is not necessarily required to return a child to its habitual residence. After a petitioner demonstrates wrongful removal or retention, the burden shifts to the respondent to prove an affirmative defense against the return of the child to the country of habitual residence. Baxter, 423 F.3d at 368; see also Hon. James D. Garbolino, International Child Custody Cases: Handling Hague Convention Cases in U.S. Courts ch. 5 (3d ed.2000) (discussing the affirmative defenses under the Convention). These affirmative defenses are narrowly construed to effectuate the purposes of the Convention and, even where a defense applies, the court has the discretion to" }, { "docid": "13595718", "title": "", "text": "filed his ICARA petition in federal court prior to raising any mention of the Hague Convention in state court. Moreover, the Eighth Circuit Court noted that the state court, in its findings of fact, only noted that the father had filed an ICARA petition in federal district court, but otherwise did not address any Hague Convention issues. The Eighth Circuit remanded the case. Here, in contrast, it is clear that Petitioner sought the return of his children under the Hague Convention and made an application to the state court for such relief. The state court extensively addressed issues under the Hague Convention. Only later — three months later — did Petitioner file an ICARA petition in the federal district court. Thus, Petitioner’s arguments in light of Silverman are unpersuasive. Petitioner argues that under Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), a state court “applying [Article 3 of the Hague Convention] must [ ] answer a series of four questions”: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes, 239 F.3d at 1070. Because the Family Court did not explicitly answer those four questions, Petitioner argues that the October 10 proceeding was inconclusive, and Petitioner is therefore not precluded from filing the instant Petition in this Court. Petitioner appears to misread Mozes. The Court of Appeals in Mozes found the language of Article 3 to require a determination of four facts. The Court did not, however, make any statements about the validity or adequacy of a proceeding should a court fail to determine the answer to those four questions. Thus, the failure of the state court to answer these four questions does not necessarily render the state proceeding invalid or “inadequate.” Regardless, it appears from the record that the court is in the process" }, { "docid": "20210707", "title": "", "text": "of “habitual residence,” our Court in Gitter adopted the following approach: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Gitter, 396 F.3d at 134. As to the “wrongfulness” of the removal or retention, the Convention itself sets forth the applicable rule: The removal or the retention of a child is ... wrongful where' — • a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3. If the court determines that a petitioner has satisfied this burden as to the two core elements — habitual residence and wrongful retention — the court must ordinarily “order the return of the child forthwith.” Hague Convention, art. 12; see also 42 U.S.C. § 11603(d). A court is not bound to order the child’s return if the respondent can successfully establish that any of four statutory exceptions applies, see Hague Convention, art. 12, 13, 20 (enumerating exceptions); see also 42 U.S.C. § 11603(e)(2), but the exceptions are to be narrowly read, Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir.1999) (citing 42 U.S.C. § 11601(a)(4)). C. Analysis For the reasons set forth below, we conclude that Mexico was the country of Elena’s habitual residence at" }, { "docid": "22066981", "title": "", "text": "or administrative authorities of a signatory state “shall not decide on the merits of rights of custody.” Convention, art. 16, 19 I.L.M. at 1503. The United States and Israel are both signatories to the Convention. The key operative concept of the Convention is that of “wrongful” removal or retention. In order for a removal or retention to trigger a state’s obligations under the Convention, it must satisfy the requirements of Article 8: The removal or the retention of a child is to be considered wrongful where— a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Convention, art. 3, 19 I.L.M. at 1501. A court applying this provision must therefore answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? In this case, the answer to the first question is clear. Arnon claims that Mi-chal wrongfully retained the children from the moment on April 17, 1998, when she asked the Los Angeles County Superior Court to grant her custody of them. The district court denied Arnon’s petition based on its answer to the second question: It found that as of that date, the children’s “habitual residence” was in the United States, not Israel. See Mozes v. Mozes, 19 F.Supp.2d 1108, 1116 (C.D.Cal.1998). Our central task is to review this finding, which we do immediately below. In the interest of judicial economy, and in keeping with the policy of" }, { "docid": "2281691", "title": "", "text": "under the Convention is whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence. A retention or removal is wrongful only if it meets the requirements of Article 3 of the Convention: The removal or the retention of a child is to be considered wrongful where— a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention art. 3, T.I.A.S. No. 11670. When deciding whether a child was wrongfully removed under this article, a court must thus determine when the removal or retention took place, what the habitual residence of the child was immediately prior to the removal, whether the removal or retention violated the petitioner’s custody rights under the law of habitual residence, and whether the petitioner was exercising those rights at the time of the removal. See Mozes, 239 F.3d at 1070. Once it is determined that a child who was habitually residing in a contracting state was wrongfully removed to or retained in another, the Convention requires that the country in which the child is located “order the return of the child forthwith.” Hague Convention art. 12, T.I.A.S. No. 11670. Moreover, “until it has been determined that the child is not to be returned under this Convention,” the authorities of the contracting state responsible for child custody determinations “shall not decide on the merits of rights of custody.” Id. art. 16. A case arising from a petition under the Hague Convention is not a custody proceeding. A United States district court “has authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim.” Shalit, 182 F.3d at 1128; see 42" }, { "docid": "20210708", "title": "", "text": "of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3. If the court determines that a petitioner has satisfied this burden as to the two core elements — habitual residence and wrongful retention — the court must ordinarily “order the return of the child forthwith.” Hague Convention, art. 12; see also 42 U.S.C. § 11603(d). A court is not bound to order the child’s return if the respondent can successfully establish that any of four statutory exceptions applies, see Hague Convention, art. 12, 13, 20 (enumerating exceptions); see also 42 U.S.C. § 11603(e)(2), but the exceptions are to be narrowly read, Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir.1999) (citing 42 U.S.C. § 11601(a)(4)). C. Analysis For the reasons set forth below, we conclude that Mexico was the country of Elena’s habitual residence at the time relevant for this analysis; that Rivera Castillo has wrongfully retained Elena in the United States; and that no statutory exception applies. Elena must therefore be returned to Mexico, where her parents’ respective custody rights may be fully adjudicated. 1. Habitual Residence We first consider whether Asuncion Mota proved by a preponderance of the evidence that Elena was removed to or retained in a state other than the state of her habitual residence. See Gitter, 396 F.3d at 130-31. Although the circumstances of her initial removal are subject to dispute (as we will discuss), it is clear that Rivera Castillo has retained Elena within the United States. Therefore, if Asuncion Mota has proved that Elena was a habitual resident of Mexico at the time of the retention, Asuncion Mota has satisfied the first prong of Gitter, and we proceed to the second prong, where we ask whether that retention is “wrongful.” Id. If Asuncion Mota has not carried this burden, however, her petition fails at the threshold: the child must have been removed to" }, { "docid": "14098724", "title": "", "text": "the Child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3, 19 I.L.M. at 1501. In Mozes, we stated that a court applying this provision must answer four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? 239 F.3d at 1070; see also Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1182 (9th Cir.2002). As was true in Mozes, the district court here denied Dimitris’ petition based on its answer to the second question: it found that as of April 23, 2004, the children’s “habitual residence” was in the United States and not Greece. Although the term “habitual residence” is intentionally left undefined in the Convention, we have developed an analytical framework to provide “intelligibility and consistency” in the determination of a child’s habitual residence. Holder II, 392 F.3d at 1015 (citing Mozes, 239 F.3d at 1071). Thus, in determining whether a child has acquired a new habitual residence, we first ask whether there is a settled intention to abandon a prior habitual residence. Mozes, 239 F.3d at 1075. In this inquiry, “the intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child’s residence.” Id. at 1076 (citing E.M. Clive, The Concept of Habitual Residence, 1997 Jurid. Rev. 137, 144). Here, as in most cases, those persons are the parents. See Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995) (looking to “the parents’ present, shared intentions regarding their child’s presence”). The parents’ settled intention is not alone sufficient to change a child’s habitual residence. Mozes" }, { "docid": "18221412", "title": "", "text": "the child’s return, the petitioner bears the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under article 3. 42 U.S.C. § 11603(e)(1)(A). If this burden is met and the petition is filed within the appropriate time frame, the Convention requires courts to “order the return of the child forthwith.” Hague Convention, art. 12. Wrongful removal or retention claims under article 3 of the Convention typically raise four issues for analysis: when the removal or retention at issue occurred, the country in which the child was habitually resident prior to the removal or retention, whether the removal or retention breached the custody rights of the petitioner, and whether the petitioner was exercising those custody rights at the time of the removal or retention. See Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.2001); see also Feder, 63 F.3d at 225 (holding wrongful retention inquiry centers on whether petitioner’s custody rights under law of country of habitual residence were breached by the retention, and whether petitioner was exercising those rights at the time of the retention). If the court finds wrongful removal or retention, the burden shifts to the respondent to prove an affirmative defense to the return of the child to the country of habitual residence under article 13 of the Convention. The respondent must prove the defense of consent or acquiescence to the removal or retention by a preponderance of the evidence, or the defense of a grave risk of harm by clear and convincing evidence. 42 U.S.C. § 11603(e)(2). The affirmative defenses are narrowly construed to effectuate the purposes of the Convention, and even finding an exception under article 13 does not automatically preclude an order of return. See Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10,494, 10,509 (Mar. 26, 1986); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996). A. Mr. Baxter contends on appeal that the District Court misapplied article 3 of the Convention by failing to give proper consideration to his wrongful retention claim. The court terminated its analysis after holding that Mr. Baxter" } ]

[ { "docid": "22766587", "title": "", "text": "above the applicable advisory range, it is not equally clear that the court would have imposed the same sentence had it considered the lower, correct advisory range. Most notably, the district court never stated that it would have imposed the same sentence regardless of the advisory range. Cf. United States v. Lemus-Gonzalez, 563 F.3d 88, 94 (5th Cir.2009) (finding no reasonable probability where the district court considered both the correct and incorrect ranges and stated that it would have imposed the same sentence in any event); United States v. Bonilla, 524 F.3d 647, 656 (5th Cir.2008) (same); United States v. Tzep-Mejia, 461 F.3d 522, 526-27 (5th Cir.2006) (same). We are hesitant, however, to conclude that Davis can meet his burden simply by pointing to a clear error in the record and asking us to infer, without more, that prejudice resulted. Cf. United States v. Jimenez, 364 Fed.Appx. 907, 2010 WL 445620, at *2 (5th Cir. Feb. 9, 2010) (\"By itself, the district court’s erroneous selection of the incorrect guideline range [wajs not enough to demonstrate that the 'substantial rights' prong of the plain error test [wa]s satisfied.”); United States v. Gonzalez, 253 Fed.Appx. 387, 388 (5th Cir.2007) (same). . See United States v. John, 597 F.3d at 285 (finding effect on substantial rights where the 108 month sentence was imposed after the district court considered an incorrect advisory range of 97 to 121 months rather than 70 to 87 months; specifically noting that \"it is not apparent from the record that John would have received an above-Guidelines sentence of 108 months if the district court had applied [the correct range]”); United States v. MunozOrtenza, 563 F.3d 112, 116 (5th Cir.2009) (finding effect on substantial rights where the 41 month sentence was imposed after the district court considered an incorrect advisory range of 41 to 51 months rather than 6 to 12 months); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th Cir.2008) (finding effect on substantial rights where the 57 month sentence was imposed after the district court considered an incorrect advisory range of 57 to 71 months rather than" } ]

[ { "docid": "22466045", "title": "", "text": "reasonable probability that he would have received a lesser sentence when (1) the district court mistakenly calculates the wrong Guidelines range, (2) the incorrect range is significantly higher than the true Guidelines range, and (3) the defendant is sentenced within the incorrect range. See, e.g., John, 597 F.3d at 284-85 (holding that an imposed sentence affects a defendant’s substantial rights when it significantly exceeds the high- and low-ends of applicable Guidelines range); United States v. Jasso, 587 F.3d 706, 713 n. 10 (5th Cir.2009) (“In cases where this Court has found plain error, the gap between the correct and erroneous sentences has been sufficient enough that there was an apparent, reasonable probability that the defendant would have received a lesser sentence but for the district court’s error.”) (collecting cases). There is a second line of precedent relevant to this case. These cases hold that when the correct and incorrect ranges overlap and the defendant is sentenced within the overlap, “we do not assume, in the absence of additional evidence, that the sentence affects a defendant’s substantial rights.” Blocker, 612 F.3d at 416. This default (or presumption) is undeniably sensible, because the defendant is still sentenced within the applicable Guidelines range. Mudekunye’s case does not neatly fall into either line of precedent. The correct and incorrect sentencing ranges overlap by one month, but he was sentenced well outside the one month overlap, 19 months above the correct range. No published cases have addressed the same fact scenario, but in an unpublished case, United States v. Carrizales-Jaramillo, we remanded for resentencing in a similar situation. 303 Fed.Appx. 215, 217 (5th Cir.2008) (per curiam) (unpublished) (vacating a 31-month imposed sentence based on an incorrect Guidelines calculation of 30-37 months rather than 24-30 months). While this case is not binding, it is persuasive and supports the conclusion that the reasoning applicable to our “no overlap” line of cases best applies here. That is, where it is “not apparent from the record that [the defendant] would have received an above-Guidelines sentence,” the imposed sentence affects the defendant’s substantial rights. John, 597 F.3d at 285 (holding" }, { "docid": "22191886", "title": "", "text": "erroneous sentences. See Jasso, 587 F.3d at 714 n. 10 (citing United States v. Munoz-Ortenza, 563 F.3d 112, 116 (5th Cir.2009); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298-99 (5th Cir.2008); United States v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008); United States v. Dentler, 492 F.3d 306, 314 (5th Cir.2007); United States v. Brazell, 489 F.3d 666, 669 (5th Cir.2007); United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir.2005)). In United States v. Price, 516 F.3d 285, 289 (5th Cir.2008), however, this court found that a defendant’s substantial rights had been affected by an erroneous sentence even when the correct and the erroneous sentencing ranges had overlapped. In Price, the defendant was erroneously sentenced to 110 months within a 110-120 range; the correct sentencing range, however, was 92-115 months. Id. Because the difference between the minimum sentence that the defendant might have received without the error and the sentence he did receive was a greater difference than the difference at issue in Villegas, the court in Price concluded that the defendant’s substantial rights were affected. Id. at 289 n. 28. Price recognized, however, that the defendant’s ability to show a reasonable probability that he would have received a lower sentence was due to the nature of the overlap between the correct and erroneous sentencing ranges. Id. In Price, the sentencing ranges overlapped by only five months. Thus, despite finding that the defendant in Price's substantial rights were affected, the court acknowledged that in instances where the overlap between the two sentencing ranges was greater, the satisfaction of the third prong of plain error review would be more difficult to show: “With more of an overlap between correct and erroneous sentencing ranges, we would face a closer question of ‘substantial rights’ ... We leave that for another day.” Id. Unlike the defendant’s sentence in Price, Jones’s original sentence lies squarely in the middle of the range he proposes the district court should now apply. Moreover, the overlap between the correct and erroneous sentencing range is not five months but thirty five months, making it more difficult for Jones" }, { "docid": "23132378", "title": "", "text": "have been 235-293 months, below the erroneous sentencing range of 360 months to life, and so the court would not have imposed the statutory maximum absent the error. We have generally found that when there is no overlap between the correct and erroneous sentencing ranges, substantial rights were affected. United States v. Jones, 596 F.3d 273, 278 (5th Cir.), cert. denied, — U.S. -, 131 S.Ct. 93, 178 L.Ed.2d 58 (2010). That is not always the case, however. In United States v. Davis, 602 F.3d 643, 648-49 (5th Cir.2010), the defendant’s correct and erroneous ranges did not overlap, but we upheld his sentence, which exceeded even the erroneous range, because the evidence showed that the district court had “ample independent bases for imposing the sentence it did” in light of the seriousness of the offense. Dickson has not shown that there is a reasonable probability that he would have received a lesser sentence absent the error. The district court highlighted Dickson’s extensive criminal history and commented that “[h]e [was] one of the most vicious predators on children” it had ever encountered. Describing Dickson’s activity as “a very exceptional case,” the court believed that no term of imprisonment would likely deter him from engaging in child molestation, and therefore “a reasonable sentence ... would be one that would ensure to the maximum possible extent that this defendant will never be free in society again.” Based on the seriousness of his offense and his past crimes, the court sentenced Dickson to the statutory maximum and so had an independent basis for imposing the sentence. Further, the court could have considered the nature of the images Dickson possessed, albeit not in the erroneous way it did. In fashioning a sentence, a court may consider, as “relevant conduct,” acts in addition to those underlying the offense of conviction. See United States v. Fowler, 216 F.3d 459, 461 (5th Cir.2000). Under § 1B1.3(a)(1), the base offense level and enhancements are determined by “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the commission" }, { "docid": "22191885", "title": "", "text": "the Guidelines, he would have received a lesser sentence. Id. at 713-14. Similarly, Jones’s current 292 month sentence falls squarely within the applicable range (262-327) for which he would have been eligible had he been re-sentenced pursuant to § 4B1.1. Although the difference in Jones’s original sentence and the bottom end of the sentencing range he now seeks to apply is thirty months, because of the substantial overlap between the original and proposed sentencing ranges, Jones cannot satisfy the third prong of plain error review. In United States v. Villegas, 404 F.3d 355, 365 (5th Cir.2005), the sentencing range calculated by the district court was twenty-one to twenty-seven months, while the range without the erroneous enhancement should have been ten to sixteen months. The Villegas court determined that because there was no overlap between the two sentences, the district court’s error necessarily increased the defendant’s sentence and thus affected his substantial rights. Id. Since Villegas, this Circuit has generally found a violation of a defendant’s substantial rights when no overlap exists between the correct and erroneous sentences. See Jasso, 587 F.3d at 714 n. 10 (citing United States v. Munoz-Ortenza, 563 F.3d 112, 116 (5th Cir.2009); United States v. Gonzalez-Terrazas, 529 F.3d 293, 298-99 (5th Cir.2008); United States v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008); United States v. Dentler, 492 F.3d 306, 314 (5th Cir.2007); United States v. Brazell, 489 F.3d 666, 669 (5th Cir.2007); United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir.2005)). In United States v. Price, 516 F.3d 285, 289 (5th Cir.2008), however, this court found that a defendant’s substantial rights had been affected by an erroneous sentence even when the correct and the erroneous sentencing ranges had overlapped. In Price, the defendant was erroneously sentenced to 110 months within a 110-120 range; the correct sentencing range, however, was 92-115 months. Id. Because the difference between the minimum sentence that the defendant might have received without the error and the sentence he did receive was a greater difference than the difference at issue in Villegas, the court in Price concluded that the defendant’s substantial" }, { "docid": "20794992", "title": "", "text": "would have received a lesser sentence.” United States v. Culbertson, 712 F.3d 235, 243 (5th Cir.2013) (citing United States v. Dickson, 632 F.3d 186, 191 (5th Cir.2011)). Here, the correct Guidelines recommendation for supervised release is five years. The district court calculated a Guidelines range of five years to life, with life recommended. The only references to the PSR’s recommendation are the district court’s initial comment that both parties adopted the PSR without objection, and that the court adopted “the analysis made under the sentencing guidelines.” When discussing its decision to impose a life term of supervised release, the district court specifically stated: “I believe this is necessary to see that the defendant does assimilate himself back into society, that he obtains suitable employment, and that he maintains a law- abiding lifestyle.” The district court was well aware of Segura’s extensive criminal history beginning in 1989 and inclusive of three sexual offense convictions against very young male and female children, plus an assortment of other convictions ending with the instant 2012 conviction for failure to register as a sex offender. The district court’s decision was based upon an assessment — independent of the PSR’s erroneous recommendation — that Segura required lifetime supervision. In light of these considerations, we conclude that Segura has not meet his burden of demonstrating a reasonable probability that the sentence would have been different but for the erroneous recommendation. Accordingly, we conclude that the district court did not commit plain error by sentencing Segura to a life-term of supervised release. D. Finally, we note that even if we were to conclude that the district court committed plain error — which we do not— this is a not a case that merits the exercise of our discretion to reverse the district court’s ruling. We may exercise our discretion to reverse under plain error review only where “the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Escalante-Reyes, 689 F.3d at 419 (alteration in original) (citation and internal quotation marks omitted). The types of errors that warrant reversal are ones that “would, shock the conscience" }, { "docid": "22466043", "title": "", "text": "Cir.2002). The jury was instructed to consider each defendant’s charges separately, and this court must presume that it heard, understood, and followed those instructions. Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Defendants’ being acquitted on some charges reflects the jury was able to consider, and weigh separately, each of the charges. United States v. Ellender, 947 F.2d 748, 755 (5th Cir.1991). 2. Mudekunye contends his sentence was procedurally unreasonable because the court erroneously applied two sentencing enhancements for the same conduct. Because Mudekunye failed to raise this objection below, plain error review applies. See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir.2007). a. Under the Guidelines, if a § 2T1.4(b)(l) enhancement is applied at sentencing, a § 3B1.3 enhancement should not be. U.S.S.G. § 2T1.4(b)(l) cmt. n. 2. The Government concedes that the district court erred in applying both enhancements and that this error was clear. The application of the § 3B1.3 enhancement resulted in a total offense level of 28. Combined with Mudekunye’s criminal history category of I, the application of the enhancement resulted in an advisory sentencing range of 78 to 97 months. The correct Guidelines range is 63 to 78 months. See U.S.S.G. Ch. 5 Pt. A (Sentencing Table). The incorrect Guidelines range (78-97 months) and the correct Guidelines range (63-78 months) overlap by one month as the top of the correct range and the bottom of the incorrect range are the same: 78 months. b. To satisfy the third prong of plain-error review, the error must have affected the defendant’s substantial rights, which ordinarily requires the defendant to show that the error “affected the outcome of the district court proceedings.” United States v. John, 597 F.3d 263, 284 (5th Cir.2010) (quotation omitted). A sentencing error affects a defendant’s substantial rights if he can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence. United States v. Blocker, 612 F.3d 413, 416-17 (5th Cir.2010). Our precedent is clear that absent additional evidence, a defendant has shown a" }, { "docid": "22466048", "title": "", "text": "v. Bonilla, 524 F.3d 647, 656 (5th Cir.2008) (finding that district court imposed a valid alternative non-Guidelines sentence when it considered the correct and incorrect ranges and stated: “I believe that I have calculated the guidelines correctly, but even if I am wrong about the guidelines, this is the sentence that I would impose in any event.”); United States v. Lemus-Gonzalez, 563 F.3d 88, 94 (5th Cir.2009) (finding no reasonable probability of a lesser sentence where the district court considered both the correct and incorrect ranges and stated that it would have imposed the same sentence in any event). The record does not establish that Mudekunye would have received an above-Guidelines sentence of 97 months if the district court had calculated the Guidelines correctly. In light of the significant disparity between Mudekunye’s sentence and the top of the correct Guidelines range and the absence of any evidence suggesting that the court would have sentenced Mudekunye to 97 months’ imprisonment irrespective of the correct Guidelines range, Mudekunye has shown a reasonable probability of a lesser sentence and therefore, demonstrated that the court’s clear error affected his substantial rights. c. Even where a defendant’s substantial rights are violated, our court retains discretion to correct the reversible plain error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett, 129 S.Ct. at 1429. The substantial disparity between the imposed sentence and the applicable Guidelines range warrants the exercise of our discretion to correct the error. See United States v. Gonzalez-Terrazas, 529 F.3d 293, 299 (5th Cir.2008) (concluding that the imposition of a sentence that was substantially greater than the Guidelines range affected the defendant’s substantial rights and the fairness of the judicial proceedings). We vacate Mudekunye’s sentence and remand for resentencing. III. For the foregoing reasons, we AFFIRM on every ground with the exception of Mudekunye’s sentence which we VACATE and REMAND for resentencing. . Because we vacate and remand for resentencing, we need not address Mudekunye's argument that his sentence was procedurally unreasonable because the sentencing court treated the Guidelines as mandatory and ignored mitigating factors. RHESA" }, { "docid": "2972363", "title": "", "text": "[the defendant’s] theory requires the extension of precedent, any potential error could not have been ‘plain.’ ”). However, given the constitutional constraints on magistrates’ authority, which we discussed at length in Dees, and a defendant’s absolute and unqualified right under Rule 11(d) to withdraw a guilty plea prior to its acceptance by the district court, the matter is hardly “subject to reasonable dispute.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423. In any event, we need not decide whether the error here is plain as that term is interpreted under our precedent because, as discussed infra, the circumstances of this case do not call for our exercise of limited discretion to correct this legal error. 3. Whether the Error Affected Substantial Rights As for the third prong of plain-error review, Jimenez-Elvirez must show that the error affected his substantial rights, i.e., “a reasonable probability that, but for the error, he would have received a lesser sentence.” United States v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012). Jimenez-Elvirez contends that the error was prejudicial because application of the two-level enhancement resulted in a higher Guidelines range — 78 to 97 months versus 63 to 78 months. “When a defendant is sentenced under an incorrect Guidelines range ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1345, 194 L.Ed.2d 444 (2016). Although this presumption may be rebutted by a showing that the erroneous Guidelines range did not affect the district court’s sentence, see id. at 1346, there is no indication in the record that the district court would have sentenced Jimenez-Elvirez to 97 months, the very top of the range it calculated, absent the erroneous calculation. Therefore, Jimenez-Elvirez has shown that the error affected his substantial rights. A Whether We Should Exercise Discretion to Reverse and Remand Nonetheless, this is not a case that calls for the exercise of our discretion to reverse. As an initial matter, Jimenez-Elvirez’s argument regarding the fourth prong of plain-error review is" }, { "docid": "22191884", "title": "", "text": "he argued on appeal, were incorrectly assigned. Id. at 713. With an offense level of 21, the district court found that the guideline range was forty-six to fifty-seven months and sentenced the defendant to forty-six months. Id. On appeal, the defendant argued for the first time that the district court’s erroneous assignment of the two criminal history points was reversible error. Id. Despite the district court’s error in assigning the criminal history points to the defendant, however, this court found that the defendant’s substantial rights were not affected for purposes of plain error review. Id. We stated: If this Court were to subtract the two criminal history points that the district assigned in error, that would put Jasso at a criminal history category II, with a corresponding advisory range of forty-one to fifty-one months in prison. His current sentence of forty six months, therefore, falls squarely in the middle of his corrected sentence. Given this set of ■ circumstances, we conclude that Jasso cannot demonstrate a reasonable probability, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence. Id. at 713-14. Similarly, Jones’s current 292 month sentence falls squarely within the applicable range (262-327) for which he would have been eligible had he been re-sentenced pursuant to § 4B1.1. Although the difference in Jones’s original sentence and the bottom end of the sentencing range he now seeks to apply is thirty months, because of the substantial overlap between the original and proposed sentencing ranges, Jones cannot satisfy the third prong of plain error review. In United States v. Villegas, 404 F.3d 355, 365 (5th Cir.2005), the sentencing range calculated by the district court was twenty-one to twenty-seven months, while the range without the erroneous enhancement should have been ten to sixteen months. The Villegas court determined that because there was no overlap between the two sentences, the district court’s error necessarily increased the defendant’s sentence and thus affected his substantial rights. Id. Since Villegas, this Circuit has generally found a violation of a defendant’s substantial rights when no overlap exists between the correct and" }, { "docid": "23175560", "title": "", "text": "Although OHegctr-Gon-zaga was decided after Gonzalez was sentenced, the error need only be plain at the time of appellate consideration. See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); see also United States v. Martinez-Vega, 471 F.3d 559, 561 (5th Cir.2006) (“[T]he Supreme Court has made clear that we determine whether the error was plain at the time of appellate consideration — not at the time of trial.”). Finally, applying the last prong of the plain error analysis, we conclude that the error affected the defendant’s substantial rights because there is “a reasonable probability that, but for the district court’s misapplication of the Guidelines, [Gonzalez] would have received a lesser sentence.” Garza-Lopez, 410 F.3d at 275. With the erroneous enhancement, Gonzalez faced a guideline range of 57 to 71 months imprisonment. Without the enhancement, Gonzalez faced a guideline range of 24 to 30 months. This significant disparity in guideline ranges based on the erroneous enhancement is sufficient to establish that Gonzalez’s substantial rights were affected. See id. (substantial rights affected where the defendant received a seventy-seven month term of imprisonment, but absent plain error, the defendant’s guideline range would have been at most thirty-three to forty-one months); Villegas, 404 F.3d at 364 (“In the absence of [the error], Villegas’s sentencing range would have been reduced from between twenty-one and twenty-seven months to between ten and sixteen months. Because these two sentencing ranges do not overlap, the district court’s error necessarily increased Villegas’s sentence and thus affected his substantial rights.”). Therefore, the district court’s application of the 16-level crime-of-violence enhancement constitutes plain error. In light of this substantial disparity, this plain error also affects the fairness of the judicial proceedings and warrants the exercise of our discretion to correct the error. See Garza-Lopez, 410 F.3d at 275 (concluding that the imposition of a sentence that was substantially greater than the guideline range affected the defendant’s substantial rights “and the fairness of the judicial proceedings”). For these reasons, we VACATE Gonzalez’s sentence and REMAND for RESENTENCING. . Gonzalez also challenges on appeal, as he did" }, { "docid": "5893512", "title": "", "text": "is plain, and (3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).” If all three conditions are met, we may remedy the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. The district court’s enhancement for obstruction of justice was erroneous in light of Booker because it was imposed on the basis of judge-found facts in a mandatory guidelines regime. In these circumstances, the first two Olano factors are satisfied. See Pirani, 406 F.3d at 550. Whether the error affected Monnier’s substantial rights is another matter. To satisfy this factor, “the defendant must show a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Id. at 552. Absent the upward adjustment, Monnier would have been sentenced at an offense level of 38, with a corresponding sentencing range of 292-365 months. With the adjustment, his offense level of 40 resulted in a range of 360 months to life. At sentencing, the district court stated: “I think that under the guidelines I really don’t have much choice, other than to do what I’m doing. The government is going to tell me to give you life imprisonment. I’m going to give you the minimum sentence.” Sen. Tr. at 948. Notwithstanding the district court’s comments and its decision to sentence Monnier at the low end of the range, the record as a whole does not suggest a reasonable probability that Mon-nier would have received a more favorable sentence had the district court considered a lower sentencing range. See Pirani, 406 F.3d at 553 (“[Sentencing at the bottom of the range is the norm for many judges, so it is insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error”). We conclude that, given these circumstances, Monnier has not demonstrated prejudicial plain error. The judgment and sentence are affirmed. . The Honorable Joseph F. Bataillon, Chief Judge, United States District Court for" }, { "docid": "22466044", "title": "", "text": "category of I, the application of the enhancement resulted in an advisory sentencing range of 78 to 97 months. The correct Guidelines range is 63 to 78 months. See U.S.S.G. Ch. 5 Pt. A (Sentencing Table). The incorrect Guidelines range (78-97 months) and the correct Guidelines range (63-78 months) overlap by one month as the top of the correct range and the bottom of the incorrect range are the same: 78 months. b. To satisfy the third prong of plain-error review, the error must have affected the defendant’s substantial rights, which ordinarily requires the defendant to show that the error “affected the outcome of the district court proceedings.” United States v. John, 597 F.3d 263, 284 (5th Cir.2010) (quotation omitted). A sentencing error affects a defendant’s substantial rights if he can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence. United States v. Blocker, 612 F.3d 413, 416-17 (5th Cir.2010). Our precedent is clear that absent additional evidence, a defendant has shown a reasonable probability that he would have received a lesser sentence when (1) the district court mistakenly calculates the wrong Guidelines range, (2) the incorrect range is significantly higher than the true Guidelines range, and (3) the defendant is sentenced within the incorrect range. See, e.g., John, 597 F.3d at 284-85 (holding that an imposed sentence affects a defendant’s substantial rights when it significantly exceeds the high- and low-ends of applicable Guidelines range); United States v. Jasso, 587 F.3d 706, 713 n. 10 (5th Cir.2009) (“In cases where this Court has found plain error, the gap between the correct and erroneous sentences has been sufficient enough that there was an apparent, reasonable probability that the defendant would have received a lesser sentence but for the district court’s error.”) (collecting cases). There is a second line of precedent relevant to this case. These cases hold that when the correct and incorrect ranges overlap and the defendant is sentenced within the overlap, “we do not assume, in the absence of additional evidence, that the sentence affects a defendant’s" }, { "docid": "17024834", "title": "", "text": "variance from that Guidelines range. Moreover, we emphasize the sheer magnitude of the disparity between Cala-bretta’s correct Guidelines range and his erroneously-enhanced Guidelines range. Designated a career offender, Calabretta had a Guidelines range of 188 to 235 months of imprisonment. Absent that enhancement, his range was calculated as 108 to 135 months of imprisonment — or perhaps 87 to 108 months of imprisonment with a Guidelines range reduction in anticipation of Amendment 782. The difference amounts to years of additional time in prison. By contrast, the Supreme Court held in Molina-Martinez that an erroneous Guidelines calculation that affected the defendant’s range by seven months constituted plain error. 136 S.Ct. at 1344. The size of the miscalculation here thus weighs strongly in favor of the conclusion that the error affected Calabretta’s substantial rights. We hold that the Guidelines miscalculation here is sufficient to show a reasonable probability that his sentence would have been different absent the error. We cannot assume here that the sentencing court would have imposed the same sentence regardless of the career offender designation. To assume so — particularly when the record suggests that Calabretta’s criminal history played a role in the ultimate sentence imposed — would “place us in the zone of speculation and conjecture.” United States v. Zabielski, 711 F.3d 381, 387 (3d Cir.2013) (quotation marks and alteration marks omitted) (applying harmless error review). Therefore, Calabretta has demonstrated that the District Court’s error affected his substantial rights. E. The Supreme Court has recently reminded us that “[u]nder the Plano framework, appellate courts retain broad discretion in determining whether a remand for resentencing is necessary.” Molina-Martinez, 136 S.Ct. at 1348. But that broad discretion should not be exercised reflexively when the other elements of the plain error standard are met. Plano, 507 U.S. at 737, 113 S.Ct. 1770 (“[A] plain error affecting substantial rights does not, without more, satisfy the [plain error standard], for otherwise the discretion afforded by the [standard] would be illusory.”); see United States v. John, 597 F.3d 263, 288-89 (5th Cir.2010) (“The discretion inherent in the plain-error standard is not tantamount to caprice," }, { "docid": "19371792", "title": "", "text": "684 F.3d 963, 971-72 (10th Cir.2012) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). “Accordingly, we will find plain error only when an error is particularly egregious and the failure to remand for correction would produce a miscarriage of justice.” Id. (quoting United States v. Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir.2005)) (internal quotation marks omitted). We conclude that Mr. Rosales-Miranda has identified such an egregious error that satisfies the plain-error test; accordingly, his sentence cannot stand. Ill The parties share the view that the first two prongs of the plain-error test are satisfied — viz., that the district court erred and that its error was clear or obvious. We see no reason to question this conclusion. Therefore, we turn our focus to the third and fourth prongs of the plain-error test. A In our third-prong inquiry under plain-error review, we ask whether the error seriously affected the defendant’s substantial rights. An error seriously affects the defendant’s substantial rights, as those terms are used in the plain-error test, when the defendant demonstrates “that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Mendoza, 698 F.3d 1303, 1310 (10th Cir.2012) (quoting United States v. Weiss, 630 F.3d 1263, 1274 (10th Cir.2010)) (internal quotation marks omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” United States v. Hasan, 526 F.3d 653, 665 (10th Cir.2008) (quoting Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir.2002)) (internal quotation marks omitted). “We therefore must ask whether we are in doubt that, had the district court” calculated the advisory Guidelines range correctly, it would have imposed the same sentence. Id. 1 We conclude that there is a reasonable probability that, absent the district court’s error, Mr. Rosales-Miranda would have received a different sentence. First, we note that the court’s erroneous calculation produced a significant deviation from the proper range: an erroneous Guidelines range of seventy to eighty-seven months, whereas the correct Guidelines range would have been either thirty to" }, { "docid": "22466088", "title": "", "text": "incorrect ranges overlap and the defendant is sentenced within the overlap, we do not assume, in the absence of additional evidence, that the sentence affects a defendant’s substantial rights”. Maj. Opn. at 290 (emphasis, citation, and internal question marks omitted). Yet, the Supreme Court has specifically rejected using per se rules under the plain-error standard. Puckett, 129 S.Ct. at 1433 (“We have emphasized that a ‘per se approach to plain-error review is flawed.’ ” (quoting Young, 470 U.S. at 17, 105 S.Ct. 1038)). “‘The plain error rule is not a run-of-the-mill remedy.’ ” Frady, 456 U.S. at 163 n. 14, 102 S.Ct. 1584 (quoting Gerald, 624 F.2d at 1299). Along those lines, in applying plain-error review post-Booker, our court has generated significant variance in measuring the severity of a sentence-increase necessary to affect defendant’s substantial rights where the Guidelines were erroneously applied. See, e.g., Blocker, 612 F.3d at 417 (defendant’s substantial rights not affected after receiving erroneous two-point increase to criminal-history score); United States v. Sandlin, 589 F.3d 749, 757-58 (5th Cir.2009) (following downward departure, defendant’s substantial rights affected because of erroneous 17-level increase to offense level); United States v. Sanchez, 527 F.3d 463, 466 (5th Cir.2008) (substantial rights affected because sentence more than double the correct range); Pnce, 516 F.3d at 289 n. 28 (substantial rights affected because of 18-month disparity between the bottom of the correct and incorrect ranges); John, 597 F.3d at 285 (substantial rights affected because defendant’s 108-month sentence exceeded top of correct range by 21 months); United States v. Gonzalez, 253 Fed.Appx. 387, 388 (5th Cir.2007) (substantial rights not affected where sentence exceeded correct range by 12 months); United States v. Jones, 489 F.3d 679, 682 (5th Cir.2007) (regardless of third-prong analysis, defendant’s receiving sentence 23 months above erroneous sentencing range did not affect fairness, integrity, or public reputation of judicial proceedings); United States v. Severin, 221 Fed.Appx. 299, 303 (5th Cir.2006) (substantial rights affected because defendant’s sentence three months in excess of correct range); Jones, 444 F.3d at 438-39 (based on the record, substantial rights not affected where district court could reasonably impose maximum" }, { "docid": "3522860", "title": "", "text": "an esoteric argument about the role of this court in reviewing sentencing decisions of the district courts or about the proper balance between competing procedural concerns. Failure to review Claiborne’s claim that the district court misapplied the obstruction of justice enhancement will cost Claiborne months, if not years, of additional time in prison because in my opinion, plain error exists on these facts. The obstruction enhancement requires willful conduct on the part of the defendant to whom it is applied. ■ U.S.S.G. § 3C1.1. This court has previously found such willful conduct where the defendant “actively participated” in the escape attempt. See United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir.1997). Given that Claiborne did not unbuckle his seat-belt, agree to help Weldon escape, respond to his questions about escaping, or talk about escaping, there is no evidence that Claiborne plotted an escape or aided and abetted Weldon in doing so. Cf. Cisneros, 112 F.3d at 1279-80. Therefore, it was clear error for the district court to have applied the obstruction enhancement to Claiborne. This finding does not end the inquiry. Because Claiborne failed to object to the obstruction enhancement’s application at the district court, he must show a “reasonable probability that, but for the district court’s misapplication of the Guidelines, [Claiborne] would have received a lesser sentence.” Villegas, 404 F.3d at 364. Absent the misapplication of the obstruction enhancement, Claiborne’s total offense level would have been 25 and his Guidelines range would have been 57 to 71 months. See U.S.S.G. ch. 5, pt. A. Although the correct and incorrect Guidelines ranges overlap, Claiborne’s sentence was not in the overlapping range. His 78-month term of imprisonment was seven months greater than the maximum recommended sentence by the correct Guidelines range. The facts of this case lead me to conclude that there is a “reasonable probability” that Claiborne would have received a lesser sentence absent the district court’s misapplication of the obstruction enhancement. The district court neither indicated that it would have imposed the same sentence as an alternative sentence nor expressed an intent to go outside the Guidelines range." }, { "docid": "3522861", "title": "", "text": "This finding does not end the inquiry. Because Claiborne failed to object to the obstruction enhancement’s application at the district court, he must show a “reasonable probability that, but for the district court’s misapplication of the Guidelines, [Claiborne] would have received a lesser sentence.” Villegas, 404 F.3d at 364. Absent the misapplication of the obstruction enhancement, Claiborne’s total offense level would have been 25 and his Guidelines range would have been 57 to 71 months. See U.S.S.G. ch. 5, pt. A. Although the correct and incorrect Guidelines ranges overlap, Claiborne’s sentence was not in the overlapping range. His 78-month term of imprisonment was seven months greater than the maximum recommended sentence by the correct Guidelines range. The facts of this case lead me to conclude that there is a “reasonable probability” that Claiborne would have received a lesser sentence absent the district court’s misapplication of the obstruction enhancement. The district court neither indicated that it would have imposed the same sentence as an alternative sentence nor expressed an intent to go outside the Guidelines range. Cf. United States v. Bonilla, 524 F.3d 647, 656 (5th Cir.2008) (stating that when the district court imposes a non-Guidelines sentence that does not directly result from an error in calculating the Guidelines, a sentence may be affirmed). In fact, the district court specifically de nied the Government’s request for an above-Guidelines sentence, stating that it was not departing from the Guidelines because the range was “fair and reasonable.” Therefore, I would find the third prong of plain error—effect on defendant’s substantial rights—met. See United States v. Carrizales-Jaramillo, 303 Fed.Appx. 215, 217 (5th Cir.2008) (per curiam) (finding reversible plain error where the incorrect Guidelines range (30-37 months) and correct Guidelines range (24-30 months) overlapped by one month but the defendant’s sentence (31 months) was not within the correct Guidelines range, and the district court did not indicate that it would have imposed the same sentence or express an intent to sentence above the Guidelines range). Finally, the sentencing error “seriously affected the fairness, integrity, or public reputation of judicial proceedings” because it “clearly affected the" }, { "docid": "23132377", "title": "", "text": "for each of the counts in a Group in order to ensure that the highest is correctly identified.” U.S.S.G. § 3D1.3 cmt. 2. The guidelines, therefore, plainly instruct a court to apply enhancements before grouping. The offense that produces the highest total offense level, not the highest base offense level, sets the level for the group. It follows that the district court should have calculated one total offense level for possession and a separate one for production. The court erred when it first determined that production produced the highest base offense level and then, second, enhanced the total offense level for the group based on the sadistic or masochistic images Dickson possessed. But for an error to constitute “plain error,” it must also have affected the defendant’s substantial rights such that “there is a reasonable probability that, but for the district court’s misapplication of the Guidelines, [the defendant] would have received a lesser sentence.” Gonzalez-Terrazas, 529 F.3d at 298 (internal quotation marks and citation omitted). Dickson contends that his guideline range, absent the error, would have been 235-293 months, below the erroneous sentencing range of 360 months to life, and so the court would not have imposed the statutory maximum absent the error. We have generally found that when there is no overlap between the correct and erroneous sentencing ranges, substantial rights were affected. United States v. Jones, 596 F.3d 273, 278 (5th Cir.), cert. denied, — U.S. -, 131 S.Ct. 93, 178 L.Ed.2d 58 (2010). That is not always the case, however. In United States v. Davis, 602 F.3d 643, 648-49 (5th Cir.2010), the defendant’s correct and erroneous ranges did not overlap, but we upheld his sentence, which exceeded even the erroneous range, because the evidence showed that the district court had “ample independent bases for imposing the sentence it did” in light of the seriousness of the offense. Dickson has not shown that there is a reasonable probability that he would have received a lesser sentence absent the error. The district court highlighted Dickson’s extensive criminal history and commented that “[h]e [was] one of the most vicious predators" }, { "docid": "22625235", "title": "", "text": "at *8. At this point, it is important to keep in mind the relevant error. The error in question here is the district court’s misinterpretation and misapplication of the then-mandatory Guidelines by finding that an enhancement was appropriate under § 2K2.1(b)(5). Thus, it is different than the error in Booker (i.e., the Sixth Amendment error of enhancing a sentence based on judge-found facts under the mandatory Guidelines) and Fanfan (application of the mandatory Guidelines absent Sixth Amendment error). For that reason, the question in the third step of the plain-error test is not the same as it was in Mares, 402 F.3d 511, 2005 WL 503715 — i.e., it is not whether the defendant can show a reasonable probability that the district court would have imposed a different sentence had the Guidelines been advisory instead of mandatory. Instead, the proper question here is whether the defendant can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence. We find that Villegas has satisfied this burden. In the absence of the four-level enhancement, Villegas’s sentencing range would have been reduced from between twenty-one and twenty-seven months to between ten and sixteen months. Because these two sentencing ranges do not overlap, the district court’s error necessarily increased Villegas’s sentence and thus affected his substantial rights. See, e.g., Aderholt, 87 F.3d at 744 (holding that the defendant’s substantial rights were affected by the court’s erroneous application of the Guidelines because a correct application of the Guidelines would have resulted in the defendant receiving a lesser sentence). Villegas has satisfied his burden under the plain-error test because he has shown that the district court misapplied the Guidelines in calculating the sentenc ing range, the court imposed a sentence under the then-mandatory Guidelines based on that miscalculation, and the sentence was higher than the correct range under the Guidelines. Under these circumstances, there is at least a reasonable probability that the district court would have imposed a lesser sentence if it had properly applied the Guidelines. Furthermore, because the district court’s error clearly affected" }, { "docid": "23132376", "title": "", "text": "guideline range or to the application of the enhancement, we review the sentence for plain error. United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir.2008). Plain error occurs when the error was clear or obvious and affected the defendant’s substantial rights. Id. If the defendant can show plain error, this court has the discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Dickson is correct that the district court erred in calculating his sentence. According to the guidelines, a court should first determine the base level for an offense, then apply any appropriate specific offense characteristics or enhancements. U.S.S.G. § 1B1.1(a)-(c). “If there are multiple counts of conviction, [the court should repeat those steps] for each count.” U.S.S.G. § 1B1.1(d). Next, if necessary, the court should group the various counts according to § 3D and adjust accordingly. The grouping commentary states that “the highest offense level of the counts in the group is used. Ordinarily, it is necessary to determine the offense level for each of the counts in a Group in order to ensure that the highest is correctly identified.” U.S.S.G. § 3D1.3 cmt. 2. The guidelines, therefore, plainly instruct a court to apply enhancements before grouping. The offense that produces the highest total offense level, not the highest base offense level, sets the level for the group. It follows that the district court should have calculated one total offense level for possession and a separate one for production. The court erred when it first determined that production produced the highest base offense level and then, second, enhanced the total offense level for the group based on the sadistic or masochistic images Dickson possessed. But for an error to constitute “plain error,” it must also have affected the defendant’s substantial rights such that “there is a reasonable probability that, but for the district court’s misapplication of the Guidelines, [the defendant] would have received a lesser sentence.” Gonzalez-Terrazas, 529 F.3d at 298 (internal quotation marks and citation omitted). Dickson contends that his guideline range, absent the error, would" } ]

[ { "docid": "10488274", "title": "", "text": "alternative channels for communication of defendants’ message. Thus, the injunction is a reasonable time, place and manner restriction and is not violative of defendants’ First Amendment rights. 1. Content Neutral Content-neutral regulations of expression are “those that ‘are justified without reference to the content of the regulated speech.’ ” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986) (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)). “The primary concern of content-neutrality is that no speech or expression of a ‘particular content’ is ‘singled out’ by the government for better or worse treatment.” Terry, 886 F.2d at 1363 (citations omitted). In this case, the preliminary injunction is content-neutral. It regulates when, where and how defendants may speak, but not what they may say. The injunction makes no mention whatsoever of abortion or any other substantive issue; it merely restricts the volume, location, timing and harassing and intimidating nature of defendants’ expressive speech. In fact, the injunction would apply equally to protests that support abortion, or indeed, to protests supporting or opposing any other cause. It is true that the injunction applies only to the defendants, but that is because it is only the defendants who have created a threat of harassment and intimidation. Thus, the injunction meets the content-neutral requirement. 2. Narrowly Tailored to Serve a Significant Government Interest There is no doubt that the preliminary injunction is necessary to serve several significant governmental interests. As stated earlier, the evidence adduced at trial clearly establishes that defendants’ “rescue” activities significantly increase the health risks associated with the medical procedures performed at the plaintiffs’ clinics. “The government ‘may properly assert important interests in safeguarding health’ and ‘in maintaining medical standards’ as regards the performing of abortions.” Northeast Women's Center, Inc. v. McMonagle, 939 F.2d 57, 63 (3d Cir.1991) (quoting Roe v. Wade, 410 U.S. at 154, 93 S.Ct. at 727). Further, the government “has a legitimate interest in seeing to it that an abortion, like any other" } ]

[ { "docid": "22088902", "title": "", "text": "that the unconstitutionality of a statute is established because the speech prohibited by it raises a ruckos. It is suggested that while it was clearly within the constitutional power of Illinois to punish this utterance if the proceeding were properly safeguarded, in this particular case Illinois denied the defendant rights which the Due Process Clause commands. Specifically, it is argued that the defendant was not permitted to raise at the trial defenses constitutionally guaranteed in a criminal libel prosecution: (1) the defense of truth; (2) justification of the utterance as “fair comment”; and (3) its privilege as a means for redressing grievances. Neither by proffer of evidence, requests for instructions, nor motion before or after verdict did the defendant seek to justify his utterance as “fair comment” or as privileged. Nor has the defendant urged as a ground for reversing his conviction in this Court that his opportunity to make those defenses was denied below. And so, whether a prosecution for libel of a racial or religious group is unconstitutionally invalid where the State did deny the defendant such opportunities is not before us. Certainly the State may cast the burden of justifying what is patent defamation upon the defamer. The benefits of hypothetical defenses, never raised below or pressed upon us, are not to be invoked in the abstract. As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made “with good motives and for justifiable ends.” Ill. Const., Art. II, § 4. Both elements are necessary if the defense is to prevail. What has been called “the common sense of American criminal law,” as formulated, with regard to necessary safeguards in criminal libel prosecutions, in the New York Constitution of 1821, Art. VII, § 8, has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement." }, { "docid": "19853915", "title": "", "text": "injunction, resulting in criminal contempt convictions, we note that such evidence is outside the record to which we may look for support for the preliminary injunction. The district court could, however, consider such evidence now in response to any motion the parties might make regarding the current scope of the injunction’s prohibitions. . As noted above, Pro-Choice has not disputed that sidewalk counseling is expressive activity entitled to full First Amendment protection. . Project Rescue also presents an \"overbreadth” challenge to paragraphs 1(b), 1(c) and 1(d) of the injunction. Project Rescue asserts that these provisions are “overbroad” because they are not narrowly tailored. We view this argument as referring to the traditional test for time, place and manner restrictions on expression, the test that was recently replaced by a more stringent test for content neutral injunctions restricting expression. See Madsen, - U.S. at -, 114 S.Ct. at 2525. Because we have applied the new Madsen test here, we do not specifically address Project Rescue's overbreadth challenge. OAKES, Senior Circuit Judge, (dissenting): While I agree with the greater part of the majority’s ruling, I disagree as to two points: I believe that both the fifteen-foot “bubble zone” and the cease and desist order are necessary under the circumstances of this ease to ensure the health and safety of the patients receiving abortions at the climes. Both provisions further the significant government interest in the safe performance of abortions, and in light of the past behavior of the Project Rescue protesters, the provisions burden no more speech than necessary, and, consequently, do not violate the First Amendment. I will address each provision separately. I. The Bubble Zone. Madsen v. Women’s Health Ctr., Inc., — U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) requires that the injunction “burden no more speech than necessary to serve a significant government interest.” Id. at -, 114 S.Ct. at 2519. I agree with the majority that all three of the government interests identified by the district court are indeed significant: 1) the safe performance of abortions, 2) public safety, and 3) protection of one group’s constitutional" }, { "docid": "19853913", "title": "", "text": "any firm, corporation or institution, or by the state or any agency or subdivision of the state. New York Civil Rights Law § 40-d provides the remedies for violations of section 40-c. It states in pertinent part: Any person who shall violate any of the provisions of the foregoing section ... or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby in any court of competent jurisdiction.... In addition, any person who shall violate any of the provisions of the foregoing section shall be deemed guilty of a class A misdemeanor. . For convenience, we will refer to these appellants, as well as the appellants in Pro-Choice II, collectively as “Project Rescue.” . In its letter brief, Project Rescue challenged, for the first time, the validity of the injunction's civil contempt provisions, arguing that any violation of the injunction should be treated as criminal, rather than civil, contempt. This issue is not properly before us on this appeal and we do not consider it. . As part of its First Amendment challenge to the preliminary injunction, Project Rescue contends that the injunction constitutes a prior restraint and that, as such, it is presumptively unconstitutional. The Supreme Court recently disposed of this argument, holding that a content neutral injunction that restricts, but does not absolutely bar, particular expression is not a prior restraint. See Madsen, - U.S. at - n. 2, 114 S.Ct. at 2524 n. 2 (citing Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam); New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)). Because, as discussed below, the injunction in this case is content neutral and is not an absolute bar on particular expression, it is not an invalid prior restraint. . Although Pro-Choice has brought to our attention several instances of violations of the preliminary" }, { "docid": "2770698", "title": "", "text": "“policy” or “custom” subject to challenge under that provision. We hold that the district court erred by dismissing McKusick’s complaint for failure to state a claim under § 1983. However, we also hold that the district court did not abuse its discretion in denying, on federalism and comity grounds, the preliminary injunction sought by McKusick; we affirm the district court’s denial of that relief. I. BACKGROUND On April 8, 1993, the Circuit Court of Seminole County entered the injunction in question. One of its provisions imposes a 36-foot buffer zone around a clinic operated by the Aware Woman Center for Choice, Inc. Named parties and those acting “in concert or participation with them, or on their behalf’ are prohibited from “congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within thirty-six (36) feet of the property line of the Clinic.” The injunction also contains an enforcement provision which provides, in part, that “[l]aw enforcement authorities ... are authorized to arrest those persons who appear to be in willful and intentional disobedience of this injunction.” This injunction has already been the subject of considerable litigation. See Operation Rescue v. Women’s Health Ctr., 626 So.2d 664 (Fla.1993), aff'd in part, rev’d in part, sub nom. Madsen v. Women’s Health Ctr., - U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); Cheffer v. McGregor, 6 F.3d 705 (11th Cir.1993), vacated, 41 F.3d 1421 (1994) (en banc) (subsequently remanded in view of Madsen). The portions of the injunction that are relevant to this case are reproduced in Madsen, - U.S. at - - -, 114 S.Ct. at 2521-22 (does not include the enforcement provision) and Cheffer, 6 F.3d at 706-07 (includes the enforcement provision). On September 24,1994, McKusiek entered the buffer zone, and began to read her Bible and pray. McKusiek had not been a named party in the underlying state court lawsuit concerning the injunction, and she was “acting independently of any organization or individual named in the Injunction.” She was on public property and neither blocked access to the clinic nor spoke to anyone. Nevertheless, a law" }, { "docid": "5767681", "title": "", "text": "bar rule, judicial orders may provide less protection for expression than a criminal statute: 1) Unlike prosecution for a violation of a statute, one who violates a judicial order may not be afforded the full safeguards of a criminal prosecution, including the right to a jury trial. See, e. g., Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp.Prob. 657-658 (1955); L. Tribe, American Constitutional Law 726 n. 1 (1978). 2) While a statute poses only a “mute, impersonal threat,” a judicial order singles out particular individuals, increasing both the likelihood of punishment if the order is violated, and the probability that protected speech will be chilled regardless of the defenses which may ultimately be available in subsequent proceedings. L. Tribe, American Constitutional Law 726 n. 2. It is notéworthy that, in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the newspapers apparently were prepared to obey an injunction, but were not deterred from publishing initially by the possibility of prosecution under criminal statutes. See Kalven, The Supreme Court, 1970-Term— Foreword: Even When a Nation Is at War, 85 Harv.L.Rev. 1, 34 & n. 156 (1971); O. Fiss, Injunctions 154-155 (1972). . Administrative censorship schemes often differ from orders such as those under Rule 26(c) because their proscriptions become effective prior to a judicial adversary proceeding to determine, on the merits, the constitutionality of the restraint. Compare A Quantity of Books v. Kansas, 378 U.S. 205, 210, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) and Marcus v. Search Warrant, 367 U.S. 717, 734 38, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961) (seizure of allegedly obscene books before adversary determination of their obscenity impermissible) with Kingsley Books, Inc. v. Brown, 354 U.S. 436, 443, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957) (determination of obscenity under “essential procedural safeguards”) and Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (no interim relief granted, so order not in effect before final determination that advertising policy was unprotected). Cf. Freedman" }, { "docid": "11021530", "title": "", "text": "other person or any class of persons from, obtaining or providing reproductive health services. 18 U.S.C. § 248(a)-. It is plaintiffs’ contention that the statute 'violates their constitutionally protected rights to freedom of speech, religion and assembly; the right to due process of law; the right to freedom from excessive punishment; the right to equal protection of the law; and the right to interstate travel—rights guaranteed by the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffs seek no monetary compensation, only declaratory and injunctive relief against FACE’S enforcement. Before the extreme remedy of an injunction will be granted, plaintiffs must demonstrate the following: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat that irreparable harm will result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to the defendant; and (4) the granting of the injunction will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir.1987). II. Plaintiffs ascribe to an anti-abortion philosophy. They hawk their point of view by demonstrating in the vicinity of clinics that offer abortions to those desiring the procedure. Plaintiffs attempt to dissuade entry into the clinics by disseminating literature and conducting sidewalk counselling. Although plaintiffs allege that their activities are, and always have been peaceful, their pleadings and admissions by counsel during oral argument reveal that their tactics include the obstruction of entry into clinics by physically blocking portals of ingress and egress. With this in mind, we turn to plaintiffs’ arguments. First, they contend that FACE restricts their freedom of speech because it criminalizes behavior that merely presents one point of view on an issue of social importance. We disagree. The statute does not criminalize speech at all; rather, it regulates and proscribes conduct that uses force, the threat of force, or physical obstruction to achieve its objective. Violence is the target of this statute, not speech, and as such is a constitutionally permitted intrusion. See Wisconsin v. Mitchell, — U.S. —, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993); see also R.A.V. v. St. Paul," }, { "docid": "6510984", "title": "", "text": "legal developments. Giving the state court the first opportunity to reassess the injunction in light of the Supreme Court’s recent decisions in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988),Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997), is the most efficient way to decide this case. It prevents parallel challenges to the same injunction from occurring, with the possibility of inconsistent judgments from the state and federal court. Compare Chejfer, 6 F.3d at 712 (striking injunction unconstitutional), with Operation Rescue v. Women’s Health Center, 626 So.2d 664, 675-76 (Fla.1993) (upholding the same injunction), aff'd in part and rev’d in part by Madsen, 512 U.S. 753, 114 S.Ct. 2516; compare Henry v. First Nat'l Bank of Clarksdale, 595 F.2d 291, 302-03 (5th Cir.1979) (finding injunction unconstitutional), with NAACP v. Claiborne Hardware Co., 393 So.2d 1290, 1300-02 (Miss.1981) (upholding the same injunction), rev’d, 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). It could also obviate the need for a federal court to decide whether some or all of the injunction is unconstitutional. See Rescue Army, 331 U.S. at 568-75, 67 S.Ct. at 1419-23. Furthermore, abstaining under these circumstance affords the Ohio courts the respect they are due as our equals in a federalist judicial system. See Juidice v. Vail, 430 U.S. 327, 335-36, 97 S.Ct. 1211, 1217-18, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-04, 95 S.Ct. 1200, 1207-08, 43 L.Ed.2d 482 (1975). We have no reason to believe the Ohio courts are less qualified than we are to fairly address Gottfried’s complaints under state and federal law. Hayse, 110 F.3d at 21; see also Harrison, 360 U.S. at 178, 79 S.Ct. at 1031 (refusing to assume that state courts “will not do their full duty in judging [state enactments] in light of state and federal constitutional requirements”); Hughes v. Lipscher, 906 F.2d 961, 967 (3d Cir.1990) (reaching the same conclusion after abstaining from" }, { "docid": "6013171", "title": "", "text": "in defendants’ brief they say that the district court improperly applied Alabama law, the substantive arguments actually presented by defendants are only the following: (1) the injunction issued by the district court goes beyond remedying past or threatened (i.e., future) unlawful conduct — in other words, it is “non-remedial” and thus amounts to an unconstitutional prior restraint on free speech; and (2) the injunction is unconstitutional as applied to defendants in that it burdens more speech than is necessary to serve significant government interests. We address these two contentions in turn. 1. Unconstitutional Prior Restraint Defendants argue that because the preliminary injunction does not remedy past or threatened (future) unlawful conduct, it is non-remedial and amounts to an unconstitutional prior restraint on free speech. Because it is a prior restraint, defendants contend, the preliminary injunction should be subject to “strict scrutiny” and the concomitant presumption against its constitutionality. See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 766, 114 S.Ct. 2516, 2525, 129 L.Ed.2d 593 (1994). Their theory derives from Justice Scalia’s concurrence in the Supreme Court’s summary denial of certiorari in Lawson v. Murray, 515 U.S. 1110, 115 S.Ct. 2264, 132 L.Ed.2d 269 (1995). In his Lawson concurrence, Scalia argued that when courts cut injunctions loose from their remedial moorings, they allow the injunctions to drift dangerously close to unconstitutional prior restraints: All speech-restricting injunctions are prior restraints in the literal sense of “ ‘administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ ” [Cit.] Precedent shows that a speech-restricting “injunction” that is not issued as a remedy for an adjudicated or impending violation of law is also a prior restraint in the condemnatory sense, that is, a prior restraint of the sort prohibited by the First Amendment____ The danger that speech-restricting injunctions may serve as a powerful means to suppress disfavored views is obvious enough even when they are based on a completed or impending violation of law. Once such a basis has been found, later speech may be quashed, or not quashed, in the discretion" }, { "docid": "22422537", "title": "", "text": "District Court Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 269 (1993), that “women seeking an abortion” were not a protected class under 42 U. S. C. § 1985(3). In light of Bray, the District Court dismissed respondents’ § 1985(3) claim, with leave to file an amended § 1985(3) cause of action. Pro-Choice Network of Western N. Y. v. Project Rescue Western N. Y., 828 F. Supp. 1018, 1025 (WDNY 1993). The court then decided to exercise pendent jurisdiction over respondents’ remaining causes of action (the six state claims), regardless of the ultimate disposition of the § 1985(3) claim. In so deciding, the court noted that “the preliminary injunction is grounded not only on the § 1985(3) claim, but two state-law claims [the N. Y. Civ. Rights Law § 40-c claim and the trespass claim] as well.” Id., at 1026, n. 4. The court explained that judicial economy, convenience, and fairness all suggested that it keep the case, since it had expended substantial resources on the case and its involvement in the case was ongoing. Id., at 1028-1029 (citing the contempt motions filed by respondents in 1990 and 1991, criminal contempt charges brought against six individuals for protests in 1992, and civil and criminal contempt motions filed in 1993). Petitioners, two individual defendants, appealed to Court of Appeals for the Second Circuit. While the case was on appeal, we decided Madsen v. Women’s Health Center, Inc., 512 U. S. 753 (1994), a case which also involved the effect of an injunction on the expressive activities of anti abortion protesters. (We discuss Madsen in greater depth in Part II-A, infra.) We held that “our standard time, place, and manner analysis is not sufficiently rigorous” when it comes to evaluating content-neutral injunctions that restrict speech. The test instead, we held, is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” 512 U. S., at 765. Applying Madsen, a panel of the Court of Appeals reversed the District Court in a split decision. 67 F. 3d 359 (1994). The Court of" }, { "docid": "1107662", "title": "", "text": "See 9.99.010(D). The Driveway Provision apparently excepts expressive conduct engaged in by individuals attempting to traverse the driveway. . Even the ordinance struck down in Sabelko, 846 F.Supp. 810, which generally tracks the Santa Barbara ordinance, contains the more restrictive definition of demonstration activity, as including but not limited to \"protesting, picketing, distributing literature, attempting to impede ac cess, or engaging in oral protest, education, or counseling activities.” Id. at 814. . Specifically, the Driveway Provision states: \"... provided however that it shall be lawful for a person to use a public sidewalk or street right-of-way adjacent to a health care facility or place of worship in order to traverse a driveway area.” 9.99.030. . One need look no further than the record before this Court to find an example of the over-breadth of the Driveway Provision. At least one anti-abortion demonstrator has been cited under the Ordinance for stepping into the eight-foot driveway zone to give literature to someone. See Plaintiffs' Supplemental Offer in Support of Their Motion for Preliminary Injunction, 5:7-9. . This Court notes that other driveway buffer zones with a more narrowly defined realm of prohibited activity have been upheld. See, e.g., Madsen, 512 U.S. at-, 114 S.Ct. at 2527-28, 129 L.Ed.2d at 611 (upholding absolute ban on “congregating, picketing, patrolling, demonstrating or entering” any property within thirty-six feet of the clinic’s property line). In so holding, the Madsen court noted: \"We also bear in mind the fact that the state court originally issued a much narrower injunction, providing no buffer zone, and that this order did not succeed in protecting access to the clinic.” Id. See also Pro-Choice Network v. Schenck, 1994 WL 480642, *9 (2d Cir. September 6, 1994) (finding unconstitutionally overbroad an injunction creating a 15-foot buffer zone permitting two demonstrators at a time to enter and engage in sidewalk counselling but noting that, \"a different record revealing greater intransigence by Project Rescue might well support a more restrictive injunction Portland Fem. Women's H. Ctr. v. Advocates for Life, 859 F.2d 681, 686 (9th Cir.1988) (upholding injunction establishing a 25-foot buffer zone against" }, { "docid": "19853914", "title": "", "text": "should be treated as criminal, rather than civil, contempt. This issue is not properly before us on this appeal and we do not consider it. . As part of its First Amendment challenge to the preliminary injunction, Project Rescue contends that the injunction constitutes a prior restraint and that, as such, it is presumptively unconstitutional. The Supreme Court recently disposed of this argument, holding that a content neutral injunction that restricts, but does not absolutely bar, particular expression is not a prior restraint. See Madsen, - U.S. at - n. 2, 114 S.Ct. at 2524 n. 2 (citing Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam); New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)). Because, as discussed below, the injunction in this case is content neutral and is not an absolute bar on particular expression, it is not an invalid prior restraint. . Although Pro-Choice has brought to our attention several instances of violations of the preliminary injunction, resulting in criminal contempt convictions, we note that such evidence is outside the record to which we may look for support for the preliminary injunction. The district court could, however, consider such evidence now in response to any motion the parties might make regarding the current scope of the injunction’s prohibitions. . As noted above, Pro-Choice has not disputed that sidewalk counseling is expressive activity entitled to full First Amendment protection. . Project Rescue also presents an \"overbreadth” challenge to paragraphs 1(b), 1(c) and 1(d) of the injunction. Project Rescue asserts that these provisions are “overbroad” because they are not narrowly tailored. We view this argument as referring to the traditional test for time, place and manner restrictions on expression, the test that was recently replaced by a more stringent test for content neutral injunctions restricting expression. See Madsen, - U.S. at -, 114 S.Ct. at 2525. Because we have applied the new Madsen test here, we do not specifically address Project Rescue's overbreadth challenge. OAKES, Senior Circuit Judge, (dissenting): While I agree with" }, { "docid": "16653547", "title": "", "text": "“prior restraint on expression comes ... with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (quoting Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968)); see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Indeed, prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96’ S.Ct. 2791, 49 L.Ed.2d 683 (1976). When a prior restraint takes the form of a court-issued injunction, the risk of infringing on speech protected under the First Amendment increases. Madsen v. Women’s Health Ctr., 512 U.S. 753, 764, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (“Injunctions ... carry greater risks of censorship and discriminatory application than do general ordinances.”). An injunction must be obeyed until modified or dissolved, and its unconstitutionality is no defense to disobedience. See Walker v. Birmingham, 388 U.S. 307, 314-21, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, [a] prior restraint ‘freezes’ it, at least for the time.” Nebraska Press Ass’n, 427 U.S. at 559, 96 S.Ct. 2791. In contrast, a “criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.” Nebraska Press Ass’n, 427 U.S. at 559, 96 S.Ct. 2791. Here, the preliminary injunction broadly prohibits the Union from making any statement that might, after it has been made, be construed as defamatory or even “harassing.” For example, the district court here imposed contempt sanctions on the Union when it found statements that were made after the initial May 4 state TRO to be defamatory, including the chants “No More Lies” and “Shame" }, { "docid": "20329101", "title": "", "text": "Paragraph 1(e) prohibits Project Rescue from aiding or abetting others in acting in violation of other sections of the injunction. Paragraph 2 provides for penalties of $10,000 and up per day for violations of the injunction. The district court carefully reviewed the terms of the injunction to ensure that the provisions did not violate Project Rescue’s First Amendment rights. As the court’s decision was issued before the Supreme Court’s recent opinion in Madsen v. Women’s Health Center, Inc., — U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 reh’g denied, — U.S. -, 115 S.Ct. 23, 129 L.Ed.2d 922 (1994), the court applied the then-controlling law on restrictions of time, place, and manner of expression, namely that the restrictions must be (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels for communication of information. Pro-Choice I, 799 F.Supp. at 1432 (citing Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)). The court found that the injunction met all three requirements. III. The Appeal Two individual defendants, Paul Schenck and Dwight Saunders, appealed, pursuant to 28 U.S.C. § 1292(a)(1), from the district court’s order issuing the preliminary injunction. While the appeal was pending, the Supreme Court decided Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). The Court held that a § 1985(3) claim, which requires a showing of some invidious, class-based animus and an interference with rights that are protected against private interference, could not be sustained against anti-abortion activists because an opposition to abortion does not reflect an animus toward women in general, and because anti-abortion activists do not conspire with the goal of interfering with interstate commerce. Soon after Bray was issued, Project Rescue moved in district court to dismiss the complaint and vacate the injunction. It argued that Pro-Choice Network’s § 1985(3) claim should be dismissed pursuant to Bray, and that, after the federal claim was dismissed, the" }, { "docid": "2770699", "title": "", "text": "disobedience of this injunction.” This injunction has already been the subject of considerable litigation. See Operation Rescue v. Women’s Health Ctr., 626 So.2d 664 (Fla.1993), aff'd in part, rev’d in part, sub nom. Madsen v. Women’s Health Ctr., - U.S. -, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); Cheffer v. McGregor, 6 F.3d 705 (11th Cir.1993), vacated, 41 F.3d 1421 (1994) (en banc) (subsequently remanded in view of Madsen). The portions of the injunction that are relevant to this case are reproduced in Madsen, - U.S. at - - -, 114 S.Ct. at 2521-22 (does not include the enforcement provision) and Cheffer, 6 F.3d at 706-07 (includes the enforcement provision). On September 24,1994, McKusiek entered the buffer zone, and began to read her Bible and pray. McKusiek had not been a named party in the underlying state court lawsuit concerning the injunction, and she was “acting independently of any organization or individual named in the Injunction.” She was on public property and neither blocked access to the clinic nor spoke to anyone. Nevertheless, a law enforcement officer employed by the City approached McKusiek and warned her that she was in violation of a court order by demonstrating in the buffer zone. The officer requested that McKusiek leave the buffer zone, and advised her that he would arrest her if she did not comply. McKusiek left the buffer zone because she did not want to be arrested. She would like to return to the buffer zone to read her Bible and pray, but has not done so because she fears arrest. After being threatened with arrest, McKu-sick brought this § 1983 civil action against the City seeking declaratory and injunctive relief. She alleges that the City unconstitutionally “enforce[s] the Injunction against [McKusiek] and other third parties who are neither named parties to the Injunction nor acting in concert with named parties.” McKusiek further alleges that the injunction, by its terms and as enforced by the City, impermissibly extends to any individual having notice of it. In summary, McKusiek claims that the injunction, on its face and as enforced by the City," }, { "docid": "16008290", "title": "", "text": "thereby warranting an injunction of its enforcement. Although Plaintiffs have provided examples of some protected speech which may be prohibited by the application of the ban, this is not sufficient to meet the burden imposed by Virginia v. Hicks. The USA PATRIOT Act’s prohibition of the provision of “expert advice or assistance” is aimed at furthering a legitimate state interest: curbing support for designated foreign terrorist organizations’ activities, which unquestionably constitute “harmful, constitutionally unprotected conduct.” Virginia v. Hicks, 123 S.Ct. at 2197. Plaintiffs have failed to demonstrate that the USA PATRIOT Act’s application to protected speech is “substantial” both in an absolute sense and relative to the scope of the law’s plainly legitimate applications. The Court therefore declines to apply the “strong medicine” of the overbreadth doctrine, finding instead that as-applied litigation will provide a sufficient safeguard for any potential First Amendment violation. 2. Plaintiffs Have Failed to Demonstrate that the Prohibition on the Provision of “Expert Advice or Assistance” Criminalizes Associational Speech. Plaintiffs argue that the prohibition on providing “expert advice or assistance” punishes pure speech by penalizing moral innocents for the culpable acts of the groups that they have supported through their speech, without requiring a showing of intent to incite or further terrorist or other illegal activity. For support, they cite Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) and McCoy v. Stewart, 282 F.3d 626 (9th Cir.), cert. denied, 537 U.S. 993, 123 S.Ct. 468, 154 L.Ed.2d 361 (2002). Plaintiffs attempt to distinguish this argument from that made in HLP I on the ground that they do not seek to provide material support in the form of money or any other tangible asset, but only through associational speech and assistance. In their opposition, Defendants contend that this argument was previously raised and rejected by the Court in HLP I, where the Court found that the material support restriction (1) was content-neutral and not aimed at the suppression of free speech and (2) does not criminalize mere association with designated foreign terrorist organizations. These rulings were affirmed by the Ninth Circuit. See" }, { "docid": "20329203", "title": "", "text": "majority opinion, neither of these circumstances obtains here. Had the protesters in question today in fact infringed the rights of the women seeking access to the clinic, I would be the first to uphold restraints against them. I remain persuaded, however, that the protesters tread only upon the sidewalks and streets — a protected setting for the free exercise of persuasive speech — and not upon the constitutional rights of those individuals seeking access to the clinics. Without reciting a record already familiar to the reader, I shall say only that I am perplexed by the Court’s apparent disregard of the district court’s commendation of Project Rescue’s compliance with the TRO, see Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F.Supp. 1417, 1424 n. 5 (W.D.N.Y.1992), a finding that speaks volumes to the lack of necessity for this overreaching injunction. Further, it is undisputed that the unusually restrictive physical setting of the Madsen clinic is not duplicated here. It is clear that here, where most of the injunction was upheld, see, e.g., Injunction ¶ 1(c) (precluding crowding); see also Pro-Choice Network v. Schenck, 67 F.3d at 372-374 (2d Cir.1994), any bubble zone is more burdensome than necessary, much less one which amorphously wafts along immuring any individual coming or going from the clinic. The insidious nature of the bubble is apparent when one considers that it is (1) invisible: a protester may not know that a person has stepped inside a bubble; and (2) chillingly ill-defined: not only does the injunction fail to identify the distance a bubble may travel, but, even if the distance were somehow divined by the district court, a protester has no way of ascertaining that information. The Court’s treatment of the “cease and desist” provision is even more disquieting. As the Supreme Court has instructed, in certain “traditional settings ... First Amendment values inalterably prevail.” Lehman v. City of Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974). In this case, the restrained speech occurred on streets and sidewalks outside health facilities. Yet the Court" }, { "docid": "22253541", "title": "", "text": "purge his contempt by ceasing to exhibit such films. The Court of Appeals and the Court, therefore, too easily equate an injunction against the exhibition of unnamed, obscene films with a typical “prior restraint.” The Art. 4667 (a) injunction does, in a sense, “restrain” future speech by declaring punishable future exhibitions of obscene motion pictures. But in this weak sense of the term criminal obscenity statutes would also be considered “prior restraints.” Prior restraints are distinct from, and more dangerous to free speech than, criminal statutes because, through caprice, mistake, or purpose, the censor may forbid speech which is constitutionally protected, and because the speaker may be punished for disobeying the censor even though his speech was protected. Those dangers are entirely absent here. An injunction against the showing of unnamed obscene motion pictures does not and cannot bar the exhibitor from showing protected material, nor can the exhibitor be punished, through contempt proceedings, for showing such material. The Art. 4667 (a) injunction, in short, does not impose a traditional prior restraint. On the contrary, it seems to me functionally indistinguishable from a criminal obscenity statute. Since an appropriately worded criminal statute is constitutionally valid, I believe that Art. 4667 (a) is valid also. II The second reason given by the Court of Appeals for invalidating Art. 4667 (a) and apparently adopted by this Court, was the “failure to provide the safeguards mandated by” Freedman v. Maryland, 380 U. S. 51 (1965), and Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975). Those cases held that injunctions against showing allegedly obscene films are invalid unless (1) the burdens of instituting proceedings and of proving the material is obscene are on the censor; (2) the restraint prior to judicial review continues only for a limited time and only to preserve the status quo; and, (3) there is an assurance of prompt final judicial determination of the films’ obscenity. I fail to see, however, how the Freedman restraints are relevant to the injunction contemplated by Art. 4667 (a). The Freedman restraints are wholly appropriate with respect to injunctions against specific, named" }, { "docid": "15894263", "title": "", "text": "against her. The First Amendment requires that “the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 372, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994)). Melfi argues that we should apply one of the more stringent tests for content-based injunctions or for prior restraints. This contention is without merit. It is well settled that an injunction of this nature (ie., directed at protestors outside of abortion clinics but based on their unlawful behavior) is content-neutral. See Schenck, 519 U.S. at 373-74, 117 S.Ct. 855; Madsen, 512 U.S. at 762-64, 114 S.Ct. 2516; see also Hill v. Colorado, 530 U.S. 703, 719-20, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (applying same rule to review of a statutory restriction on protest activities at health care clinics). Nor is such an injunction a prior restraint. See Schenck, 519 U.S. at 374 n. 6, 117 S.Ct. 855; Madsen, 512 U.S. at 763 n. 2, 114 S.Ct. 2516; see also Hill, 530 U.S. at 733-34, 120 S.Ct. 2480. There is also little question that this type of injunction serves significant governmental interests. See, e.g., Madsen, 512 U.S. at 767-68, 114 S.Ct. 2516. The articulated public interests supporting the 2000 Injunction are: (1) ensuring public safety and order; (2) protecting freedom to receive reproductive health services; (3) advancing medical privacy and the well-being of patients seeking care at facilities; and (4) safeguarding private property. These are significant governmental interests, capable of supporting injunctive restrictions on protest behavior. The 1992 Injunction imposed fixed fifteen-foot buffer zones around clinic doorways, driveways, and parking lot entrances. See Schenck, 519 U.S. at 380-81, 117 S.Ct. 855. The injunction was upheld by the set of governmental interests similar to those asserted here: “ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services.” Id. at 376, 117 S.Ct." }, { "docid": "22080648", "title": "", "text": "on speech and hence violated the First Amendment. Recognizing the well-established distinction between prior restraints and subsequent criminal punishments, the Court of Appeals found that the forfeiture here was “a criminal penalty imposed following a conviction for conducting an enterprise engaged in racketeering activities,” and not a prior restraint on speech. Id., at 834. The court also rejected petitioner’s claim that RICO’s forfeiture provisions are constitutionally overbroad, pointing out that the forfeiture order was properly limited to assets linked to petitioner’s past racketeering offenses. Id., at 835. Lastly, the Court of Appeals concluded that the forfeiture order does not violate the Eighth Amendment’s prohibition against “cruel and unusual punishments” and “excessive fines.” In so ruling, however, the court did not consider whether the forfeiture in this case was grossly disproportionate or excessive, believing that the Eighth Amendment “ ‘does not require a proportionality review of any sentence less than life imprisonment without the possibility of parole.’” Id., at 836 (quoting United States v. Pryba, 900 F. 2d 748, 757 (CA4), cert. denied, 498 U. S. 924 (1990)). We granted certiorari, 505 U. S. 1217 (1992). Petitioner first contends that the forfeiture in this case, which effectively shut down his adult entertainment business, constituted an unconstitutional prior restraint on speech, rather than a permissible criminal punishment. According to petitioner, forfeiture of expressive materials and the assets of businesses engaged in expressive activity, when predicated solely upon previous obscenity violations, operates as a prior restraint because it prohibits future presumptively protected, expression in retaliation for prior unprotected speech. Practically speaking, petitioner argues, the effect of the RICO forfeiture order here was no different from the injunction prohibiting the publication of expressive material found to be a prior restraint in Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). As petitioner puts it, see Brief for Petitioner 25, the forfeiture order imposed a complete ban on his future expression because of previous unprotected speech. We disagree. By lumping the forfeiture imposed in this case after a full criminal trial with an injunction enjoining future speech, petitioner stretches the term “prior restraint”" }, { "docid": "22080649", "title": "", "text": "924 (1990)). We granted certiorari, 505 U. S. 1217 (1992). Petitioner first contends that the forfeiture in this case, which effectively shut down his adult entertainment business, constituted an unconstitutional prior restraint on speech, rather than a permissible criminal punishment. According to petitioner, forfeiture of expressive materials and the assets of businesses engaged in expressive activity, when predicated solely upon previous obscenity violations, operates as a prior restraint because it prohibits future presumptively protected, expression in retaliation for prior unprotected speech. Practically speaking, petitioner argues, the effect of the RICO forfeiture order here was no different from the injunction prohibiting the publication of expressive material found to be a prior restraint in Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). As petitioner puts it, see Brief for Petitioner 25, the forfeiture order imposed a complete ban on his future expression because of previous unprotected speech. We disagree. By lumping the forfeiture imposed in this case after a full criminal trial with an injunction enjoining future speech, petitioner stretches the term “prior restraint” well beyond the limits established by our cases. To accept petitioner’s argument would virtually obliterate the distinction, solidly grounded in our cases, between prior restraints and subsequent punishments. The term “prior restraint” is used “to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984) (emphasis added). Temporary restraining orders and permanent injunctions — i. e., court orders that actually forbid speech activities — are classic examples of prior restraints. See id., §4.03, at 4-16. This understanding of what constitutes a prior restraint is borne out by our cases, even those on which petitioner relies. In Near v. Minnesota ex rel. Olson, supra, we invalidated a court order that perpetually enjoined the named party, who had published a newspaper containing articles found to violate a state nuisance statute, from producing any future “malicious, scandalous or defamatory” publication. Id., at 706. Near, therefore, involved a true restraint on future speech — a permanent" } ]

[ { "docid": "22135809", "title": "", "text": "parties agreed to submit the case to the district court by motion, the Plan argues that the clearly erroneous standard of review should apply to that court's factual determinations. Application of the clearly erroneous standard would not be appropriate, however, because the district court employed a summary judgment standard of review in dismissing the claim. See Pasant v. Jackson Nat'l Life Ins. Co., 52 F.3d 94, 96 (5th Cir.1995) (employing de novo standard of review in appeal from dismissal on cross-motions for summary judgment). . Meditrust questions Pierre's application of abuse of discretion review to factual determinations, noting that other circuits have criticized it. See Rowan v. Unum Life Ins. Co. of America, 119 F.3d 433, 435-36 (6th Cir.1997); Ramsey v. Hercules Inc., 77 F.3d 199, 202-05 (7th Cir.1996); Luby v. Teamsters Health, Welfare & Pension Trust Funds, 944 F.2d 1176, 1183-84 (3d Cir.1991); Reinking v. Philadelphia Am. Life Ins. Co., 910 F.2d 1210, 1213-14 (4th Cir.1990). . See Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 828 (5th Cir.1996) (\"Blue Cross concedes that its decisions regarding medical necessity of the [treatment] were factual determinations subject to abuse of discretion review by the district court under Pierre.\")-, Sweatman, 39 F.3d at 598 (\"Sweatman concedes that MetLife’s determination that she was not disabled was more factual in nature than interpretive. ...’’) (internal quotations omitted). . When panel decisions are in conflict, the earlier one controls. See Narvaiz v. Johnson, 134 F.3d 688, 694 (5th Cir.) (\"It is more than well-established that, in this circuit, one panel may not overrule the decision, right or wrong, of a prior panel in the absence of en banc reconsideration or superseding decision of the Supreme Court.”), cert. denied, - U.S. -, 118 S.Ct. 2364, 141 L.Ed.2d 731 (1998). .See, e.g., Switzer v. Wal-Mart Stores, Inc., 52 F.3d 1294, 1298 (5th Cir.1995) (\"[T]he decisions of the plan administrator can only be reversed if found to be arbitrary and capricious.”); Izzarelli v. Rexene Prods. Co., 24 F.3d 1506, 1513 n. 13 (5th Cir.1994) (referring to \"our abuse of discretion/arbitrary and capricious standard....”); Duhon v." } ]

[ { "docid": "16464614", "title": "", "text": "S.Ct. 948, 103 L.Ed.2d 80 (1989). However, if the language of the plan does grant the plan administrator discretionary authority to construe the terms of the plan or determine eligibility for benefits, a plan’s eligibility determination must be upheld by a court unless it is found to be an abuse of discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008) (citing Firestone Tire & Rubber Co., 489 U.S. at 111, 115, 109 S.Ct. 948). Independent of the administrator’s ultimate authority to determine benefit eligibility, factual determinations made by the plan administrator during the course of a benefits review will be rejected only upon a showing of abuse of discretion. Meditrust Fin. Servs. Corp., 168 F.3d at 213. In the ERISA context, “[a]buse of discretion review is synonymous with arbitrary and capricious review.” Cooper, 592 F.3d at 652. This standard requires only that substantial evidence supports the plan fiduciary’s decision. Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 273 (5th Cir.2004). Substantial evidence is “more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Deters v. Sec’y of Health, Educ. & Welfare, 789 F.2d 1181, 1185 (5th Cir.1986)). “A decision is arbitrary only if made without a rational connection between the known facts and the decision or between the found facts and the evidence.” Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir.2009) (citing Meditrust Fin. Servs. Corp., 168 F.3d at 215). Moreover, this court’s “review of the administrator’s decision need not be particularly complex or technical; it need only assure that the administrator’s decision fall[s] somewhere on a continuum of reasonableness — even if on the low end.” Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir.1999) (en banc)). DISCUSSION 1. Abuse of discretion review of the Retirement Board’s 2011 benefits determination Atkins argues the Retirement Board’s benefits" }, { "docid": "2647449", "title": "", "text": "as the district court.” (internal citations omitted)). . Ellis v. Liberty Life Assurance Co. of Bos., 394 F.3d 262, 273 (5th Cir.2004) (\"If the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary and capricious, it must prevail.”). . High, 459 F.3d at 576. As we have previously stated, ‘‘[a]pplying an abuse of discretion review of an administrator’s interpretation of the plan consists of a two-step process: first inquiring whether the plan administrator's decision was ‘legally correct,' and, if it is not, secondly inquiring whether the administrator abused his discretion.” Porter v. Lowe's Cos., Inc.’s Bus. Travel Accident Ins. Plan, 731 F.3d 360, 364 (5th Cir.2013) (citing Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir.2008)). Nevertheless, this court may \" ‘bypass, without deciding, [the issue] whether the Plan Administrator's denial was legally correct, reviewing only whether the Plan Administrator abused its discretion in denying the claim' if that can be 'more readily determine[d].’” Porter, 731 F.3d at 364 (quoting Holland v. Int'l Paper Co. Ret. Plan, 576 F.3d 240, 246 n. 2 (5th Cir.2009)). Because the parties have not briefed whether MetLife’s decision was “legally correct,” but rather debate whether the benefits denial ultimately was an \"abuse of discretion,” we dispense with step one of the analysis. . Holland, 576 F.3d at 246 (citation and internal quotation marks omitted). . Id. (quoting Meditrust Pin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999)). To put it another way, the \"abuse of discretion” standard “is the functional equivalent of arbitrary and capricious review: '[t]here is only a semantic, not a substantive, difference between the arbitrary and capricious and the abuse of discretion standards in the ERISA benefits review context.'\" Anderson, 619 F.3d at 512. . Holland, 576 F.3d at 246 (quoting Meditrust Fin. Servs., 168 F.3d at 215). . Id. . Ellis, 394 F.3d at 273 (citation and internal quotation marks omitted). . Holland, 576 F.3d at 247 (quoting Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007)); see also Lain v. UNUM Life Ins. Co." }, { "docid": "23164251", "title": "", "text": "of what is required of [the sedentary position] .... [The Plan]’s decision may not be correct, but we cannot say that it was arbitrary.”). Overall, considering the potential conflict of interest as a minimal factor, the evidence is more than sufficient to support the Plan Administrator’s exercise of its discretion against the challenges raised by Holland. Cf. Dutka ex rel. Estate of T.M. v. AIG Life Ins. Co., 573 F.3d 210, 213, 2009 WL 1800139, *2 n. 6 (5th Cir.2009) (“[I]n light of the evidence supporting the plan administrator’s decision, the conflict of interest is not a ‘tiebreaking’ factor.”). III. CONCLUSION For the above-specified reasons, we REVERSE the district court’s judgment awarding Holland benefits and attorney’s fees and REMAND for entry of judgment in favor of the Plan. Costs shall be borne by Holland. . Holland described the dispatcher position as having light physical requirements. International Paper's Manager-Industrial Relations, Kevin P. Doherty, however, attested that \"[a]U positions at the Louisiana Mill for which Mr. Holland may be qualified are physically demanding jobs that require numerous types of exertions and frequently changing working conditions.” . Typically, we employ a two-step process when conducting this review. Stone, 570 F.3d at 257, 2009 WL 1479405, at *4; High v. E-Sys. Inc., 459 F.3d 573, 577 (5th Cir.2006). First, we determine whether the Plan Administrator’s determination was legally correct. Stone, 570 F.3d at 257, 2009 WL 1479405, at *4. If the determination was legally correct, there is no abuse of discretion; if it was incorrect, then we must review whether that interpretation was an abuse of discretion. Id. Nonetheless, we are not confined to this test; we may skip the first step if we can more readily determine that the decision was not an abuse of discretion. Duhon v. Texaco, Inc., 15 F.3d 1302, 1307 n. 3 (5th Cir.1994); MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 481 (5th Cir.2003), abrogated on other grounds as recognized by Crowell, 541 F.3d at 311-12; see also Sweatman, 39 F.3d at 602-03 (concluding that an ERISA administrator’s determination was not an abuse of discretion and affirming judgment on" }, { "docid": "5384509", "title": "", "text": "court reviews de novo the district court’s conclusion that an ERISA plan administrator ... abuse[d] its discretion in denying benefits, and in doing so reviews the plan administrator’s decision from the same perspective as the district court.” Anderson v. Cytec Indus., Inc., 619 F.3d 505, 511-12 (5th Cir.2010) (per curiam) (internal citation omitted). The district court found, and the parties do not dispute, that the benefits plan at issue in this case gave Unum discretionary authority to construe the terms of the plan and render benefits decisions. We therefore review the plan administrator’s decision to deny benefits for abuse of discretion. See Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir.2009). A plan administrator abuses its discretion if it acts “arbitrarily or capriciously.” Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir.1999) (quoting Sweatman v. Commercial Union Ins., Co., 39 F.3d 594, 601 (5th Cir.1994)). A decision is arbitrary and capricious only if it is “made without a rational connection between the known facts and the decision or between the found facts and the decision.” Meditrust, 168 F.3d at 215 (quoting Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996)); see Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 302 (5th Cir.1999) (en banc) (observing that there only need be “concrete evidence in the administrative record that supports the denial of the claim”), overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); Holland, 576 F.3d at 247 (“Our ‘review of the administrator’s decision need not be particularly complex or technical; it need only assure that the administrator’s decision fall somewhere on a continuum of reasonableness—even on the low end.’ ”) (quoting Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007)). In deciding whether there was an abuse of discretion, we also consider whether the plan administrator has a conflict of interest. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct." }, { "docid": "3689527", "title": "", "text": "provider’s services. As noted above, the plan gives Aetna discretion to resolve ambiguities in the plan language in its favor. However, Aetna’s discretion to resolve ambiguities in the plan does not extend to the plan summary, notwithstanding that in this instance the summary is a verbatim copy of text in the plan. See Rhorer v. Raytheon Eng’rs & Constructors, Inc., 181 F.3d 634, 642 (5th Cir.1999). Ambiguities in a plan summary are resolved in favor of the beneficiary. Id. (holding that contra proferentum applies when interpreting a plan summary even “when the plan administrator has expressly been given discretion to interpret the plan”); Hansen v. Continental Ins. Co. 940 F.2d 971, 982 (5th Cir.1991). That is because ERISA requires that plan summaries be “written in a manner calculated to be understood by the average plan participant, and ... sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.” 29 U.S.C. § 1022(a); see also, e.g., Harris Methodist Ft. Worth v. Sales Support Servs. Inc. Emp. Health Care Plan, 426 F.3d 330, 336 (5th Cir.2005) (noting that plan summaries are interpreted from the perspective of a layperson). Therefore, when considering the COC as a plan summary we must resolve its ambiguity against requiring pre-authorization of ad hoc outside services. That of course diverges from the interpretation Aetna has given to identical language in the underlying plan. If that outcome seems puzzling, the anomaly is traceable to Aetna’s curious decision to use identical language in both plan and plan summary — documents that serve quite different functions and are accordingly subject to differing interpretative standards. See Hansen, 940 F.2d at 981. In Hansen, we held that the terms of the plan summary control over inconsistent terms in the underlying plan. 940 F.2d at 981. And in Rhorer we held that the employer/administrator’s “interpretation of the plan [was] legally incorrect” because it conflicted with one possible interpretation of ambiguous language in the plan summary. 181 F.3d at 642. Those cases preceded CIGNA Corp. v. Amara, — U.S.-, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011)," }, { "docid": "23077219", "title": "", "text": "any additional relief under 29 U.S.C. § 1132(a)(3) and 29 C.F.R. § 2560.503-1(h). The district court ordered that Corry was entitled to benefits that she should have been paid from June 15, 2001 through June 1, 2005 plus prejudgment interest, the reinstatement of her benefits effective June 1, 2005, and reasonable attorney’s fees. Liberty appealed. III. This Court reviews summary judgments de novo in ERISA cases, applying the same standards as the district court. See Baker v. Metropolitan Life Ins. Co., 364 F.3d 624, 627-28 (5th Cir. 2004). We review an administrator’s denial of ERISA benefits for abuse of discretion if “an administrator has discretionary authority with respect to the decision at issue.” Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 295 (5th Cir.1999) (en banc). Here, Liberty had discretionary authority to determine eligibility for benefits and to construe the terms of the plan. Therefore, we review Liberty’s decisions for abuse of discretion. See id. Under the abuse of discretion standard, “[i]f the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary and capricious, it must prevail.” Ellis v. Liberty Life Assurance Co. of Bos ton, 394 F.3d 262, 273 (5th Cir.2004). “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted). “An arbitrary decision is one made without a rational connection between the known facts and the decision or between the found facts and the evidence.” Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996). Where, as here, the administrator is self-interested because it both insures and administers the plan, we apply a “sliding scale standard” and accord Liberty’s decision less than full deference. Vega, 188 F.3d at 295-97. “The greater the evidence of conflict on the part of the administrator, the less deferential our abuse of discretion standard will be.” Id. at 297. Here, although Liberty’s dual role as administrator and insurer provides a minimal basis for a potential conflict of interest, see Lain v." }, { "docid": "20175620", "title": "", "text": "Inc., 168 F.3d 211, 214-15 (5th Cir.1999)) (internal quotation marks omitted). The decision need only “fall somewhere on a continuum of reasonableness— even if on the low end.” Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir.1999) (en banc), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008)). “Although we generally decide abuse of discretion based upon the information known to the administrator at the time he made the decision, the administrator can abuse his discretion if he fails to obtain the necessary information.” Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1015 (5th Cir.1992). In this case LINA operates under a conflict of interest; it is uncontested both that LINA has discretionary authority to make claims decisions and that it is responsible for paying benefits under the Plan. See Glenn, 128 S.Ct. at 2348 (2008). Although the presence of a conflict is not determinative, and does not permit converting the “abuse of discretion” review into a more onerous standard of review, it is properly considered as a factor in the overall analysis of LINA’s denial of benefits. See Glenn, 128 S.Ct. at 2350-52 (2008); Holland, 576 F.3d at 247-48 n. 3. III. Discussion For support of LINA’s denial of benefits, Defendants rely on Sanchez v. Life Insurance Co. of North America and Davis v. Life Insurance Co. of North America, two unpublished Fifth Circuit decisions upholding LINA’s denial of benefits where the insureds died in single-car crashes when driving while intoxicated. Sanchez, 393 Fed.Appx. 229 (5th Cir.2010) (unpublished op.); Davis, 379 Fed.Appx. 393 (5th Cir.2010) (unpublished op.). In both of those cases, however, LINA’s policies each defined “accident” as “[a] sudden, unforeseeable, external event.” Sanchez, 393 Fed.Appx. at 233; Davis, 379 Fed. Appx. at 395-96. In sharp contrast to those cases, neither of the Policies nor the Plan in this case contains either that definition or any other definition of “accident.” Thus, this case requires" }, { "docid": "22315668", "title": "", "text": "administrator's oblique reference to a Change of Control under the latter definition may very well have provided the impetus for the \"winding up” analysis urged by the Beneficiaries for the first time in the district court. . Melton v. Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir.1997). . Barhan v. Ry-Ron Inc., 121 F.3d 198, 201 (5th Cir.1997) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80(1989)). . Id. at 200. . Bellaire Gen'l Hosp. v. Blue Cross Blue Shield of Michigan, 97 F.3d 822, 829 (5th Cir.1996). . Nickel v. Estate of Estes, 122 F.3d 294, 298 (5th Cir.1997). .974 F.2d 631 (5th Cir.1992). . Although we routinely employ this two-step approach in testing de novo a plan administrator's interpretation of a plan for abuse of discretion, rigid adherence to the Wildbur method is not always necessary. See Duhon v. Texaco, Inc., 15 F.3d 1302, 1307-08 & n. 3 (5th Cir.1994) (noting that \"the reviewing court is not rigidly confined to [Wildbur's] two-step analysis in every case,” and departing from the methodology in concluding that the plan administrator did not abuse his discretion). It is, however, generally instructive and appropriate to the analysis in the instant case. ■ . Wildbur, 974 F.2d at 637-38 (citations omitted). . Tolson v. Avondale Industries, Inc., 141 F.3d 604, 608-09 (5th Cir.1998) . See Rauch v. RCA Corp., 861 F.2d 29 (2d Cir.1988) and Rothschild Internat’l Corp. v. Liggett Group Inc., 474 A.2d 133 (Del.1984) (holding that owners of preferred stock were not entitled to the liquidation or redemption preference specified in their stock agreements because the merger of the corporations in which they owned stock did not constitute the liquidation of the corporation). In fact, virtually every business corporation law in this country contemplates, in sequence, (1) the formal adoption of a corporate resolution to commence liquidation, followed by (2) the sale or distribution in-kind of its assets, the payment if its debts,'and the gradual reduction and eventual termination of its routine operations, and concluding with (3)" }, { "docid": "22069160", "title": "", "text": "a record that arguably does not support the administrator’s decision.. Although the administrator has no duty to contemplate arguments that could be made by the claimant, we do expect the administrator’s decision to be based on evidence, even if disputable, that clearly supports the basis for its denial. C We turn next to the panel’s use of the doctors’ affidavits in reaching its decision. A long line of Fifth Circuit cases stands for the proposition that, when assessing factual questions, the district court is constrained to the evidence before the plan administrator. Meditrust Financial Services Corp. v. Sterling Chemicals, Inc., 168 F.3d 211, 215 (5th Cir.1999); Schadler v. Anthem Life Insurance Company, 147 F.3d 388, 394-95 (5th Cir.1998); Thibodeaux v. Continental Casualty Insurance, 138 F.3d 593, 595 (5th Cir.1998); Barhan v. Ry-Ron Inc., 121 F.3d 198 (5th Cir.1997); Bellaire General Hosp. v. Blue Cross Blue Shield of Michigan, 97 F.3d 822, 828-29 (5th Cir.1996); Sweatman v. Commercial Union Insurance Co., 39 F.3d 594, 597-98 (1994); Duhon v. Texaco Inc., 15 F.3d 1302, 1306-07 (5th Cir.1994); Southern Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 101-02 (5th Cir.1993); Wildbur v. ARCO Chem. Co., 974 F.2d 631, 639 (5th Cir.1992). Our case law also makes clear that the plan administrator has the obligation to identify the evidence in the administrative record and that the claimant may then contest whether that record is complete. See, e.g., Barhan, 121 F.3d at 201-02. Once the administrative record has been determined, the district court may not stray from it except for certain limited exceptions. To date, those exceptions have been related to either interpreting the plan or explaining medical terms and procedures relating to the claim. Thus, evidence related to how an administrator has interpreted terms of the plan in other instances is admissible. See Wildbur v. ARCO Chemical Co., 974 F.2d 631, 639 & n. 15 (5th Cir.1992)(compiling cases). Likewise, evidence, including expert opinion, that assists the district court in understanding the medical terminology or practice related to a claim would be equally admissible. However, the district court is precluded from receiving evidence" }, { "docid": "2647450", "title": "", "text": "246 n. 2 (5th Cir.2009)). Because the parties have not briefed whether MetLife’s decision was “legally correct,” but rather debate whether the benefits denial ultimately was an \"abuse of discretion,” we dispense with step one of the analysis. . Holland, 576 F.3d at 246 (citation and internal quotation marks omitted). . Id. (quoting Meditrust Pin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999)). To put it another way, the \"abuse of discretion” standard “is the functional equivalent of arbitrary and capricious review: '[t]here is only a semantic, not a substantive, difference between the arbitrary and capricious and the abuse of discretion standards in the ERISA benefits review context.'\" Anderson, 619 F.3d at 512. . Holland, 576 F.3d at 246 (quoting Meditrust Fin. Servs., 168 F.3d at 215). . Id. . Ellis, 394 F.3d at 273 (citation and internal quotation marks omitted). . Holland, 576 F.3d at 247 (quoting Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007)); see also Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 342 (5th Cir.2002) (stating that the administrator’s decision must be \"based on evidence, even if disputable, that clearly supports the basis for its denial\" (citation omitted)). . Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497, 513 (5th Cir.2013), cert. denied,U.S. -, 134 S.Ct. 1761, 188 L.Ed.2d 593 (2014) (\"[W]e decline to substitute our judgment for that of the plan administrator.”); McDonald v. Hartford Life Grp. Ins. Co., 361 Fed.Appx. 599, 608 (5th Cir.2010) (unpublished) (“The reviewing court may not substitute its judgment for that of the plan administrator.”). We note that a \"court must take into consideration the conflict of interest inherent in a benefits system in which the entity that pays the benefits ... maintains discretionary control over the ultimate benefits decision.” Anderson, 619 F.3d at 512 (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111-16, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); Holland, 576 F.3d at 247 n. 3). Although such a conflict is \"one factor among many that a reviewing judge must" }, { "docid": "12218836", "title": "", "text": "state law claims, is necessarily federal in character by virtue of the clearly manifested intent of Congress. Metropolitan Life, 481 U.S. at 62, 107 S.Ct. at 1545. We agree with the district court that Dow-den claims a violation of ERISA when she alleges a denial of benefits due under the Blue Cross policy. A federal question exists on her claim and the district court’s exercise of jurisdiction was proper. Hubbard, 42 F.3d at 945. II. MEDICAL NECESSITY Dowden’s theory of recovery and the summary judgment entered against her rest upon whether Blue Cross as the plan administrator abused its discretion in interpreting the term “medically necessary” as expressly defined in the insurance contract. A denial of ERISA benefits by a plan administrator is reviewed by the courts de novo unless the plan gives the plan administrator “discretionary authority to determine the eligibility for benefits or to construe the terms of the plan.” Duhon v. Texaco, Inc., 15 F.3d 1302, 1305 (5th Cir.1994)(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989)). Contrary to Dowden’s assertion, Southern Farm Bureau Life Insurance Co. v. Moore, 993 F.2d 98 (1993), does not stand for the proposition that the court may look to general principles of common law or state law absent ERISA guidance on the interpretation of the plan. Moore states that because ERISA does not dictate the appropriate standard of review for evaluating benefit determinations of plan administrators, courts must first look to the plan terms to determine if the plan administrator has the discretionary authority to interpret the plan terms. 993 F.2d at 100. The abuse of discretion standard is the appropriate standard of review to challenges to a plan administrator’s interpretation of the plan terms when that plan grants the administrator the authority to make a final and conclusive determination of the claim. Duhon, 15 F.3d at 1305 (citing Bruch, 489 U.S. at 115, 109 S.Ct. at 956). In applying the abuse of discretion standard, we analyze whether the plan administrator acted arbitrarily or capriciously. Bellaire Gen. Hosp. v. Blue" }, { "docid": "11462256", "title": "", "text": "the court follows a two-step process. “First the court determines whether the administrator’s interpretation of the plan is legally correct.” Aboul-Fetouh v. Employee Benefits Comm., 245 F.3d 465, 472 (5th Cir. 2001) (citing Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998)). “If the court determines that the plan administrator’s interpretation of the plan is legally correct, then the administrator’s interpretation and the denial of benefits should be upheld because there cannot have been any abuse of discretion.” Id. “If, on the other hand, the court determines that the plan administrator’s interpretation is not legally correct, then the court must proceed to determine whether the administrator’s decision denying benefits was an abuse of discretion.” Id. (citing Threadgill, 145 F.3d at 293). To determine whether the administrator’s interpretation of the plan was legally correct, the court must consider: (1) whether the administrator has given the plan a uniform construction; (2) whether the interpretation is consistent with a fan-reading of the plan; and (3) any unanticipated costs resulting from different interpretations of the plan. See Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637-38 (5th Cir.1992). If, after reviewing these factors, the court finds the administrator’s interpretation incorrect, the court’s inquiry continues. Consequently, the propriety of the administrator’s use of discretion depends on: (1) the internal consistency of the plan under the administrator’s interpretation; (2) any relevant regulations formulated by the appropriate administrative agencies; and (3) the factual background of the determination and any inferences of lack of good faith. Id.; see also Batchelor v. Int’l Bhd. of Elec. Workers Local 861 Pension & Ret. Fund, 877 F.2d 441, 445-48 (5th Cir.1989). On rare occasions, the court can avoid a full-fledged two-step analysis “if an administrator interprets an ERISA plan in a manner that directly contradicts the plain meaning of the plan language.” See Gosselink v. AT&T, Inc., 272 F.3d 722, 727 (5th Cir.2001); see also Duhon v. Texaco, Inc., 15 F.3d 1302, 1307-08 & n. 3 (5th Cir.1994) (“[T]he reviewing court is not rigidly confined to [Wildbur’s] two-step analysis in every case.”). This exception prevents “ ‘the" }, { "docid": "20231695", "title": "", "text": "number of occupations requiring only a sedentary level of exertion. Schexnayder then filed suit in federal court seeking review of Hartford’s decision to terminate his disability benefits. In August 2007, the parties submitted cross motions for summary judgment. The district court granted Schexnayder’s motion, concluding that Hartford abused its discretion in terminating Schexnayder’s disability benefits. In addition to reinstating Schexnayder’s benefits under the Plan, the court ordered Hartford to pay past long-term disability benefits retroactive to January 31, 2006 (including pre- and post-judgment interest), and Schexnayder’s attorneys’ fees and costs. The district court entered a final judgment and Hartford timely appealed. II. JURISDICTION AND STANDARD OF REVIEW We review the district court’s grant of summary judgment in an ERISA case de novo, applying the same standard as the district court. Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 537 (5th Cir.2007). Because the Plan gave Hartford discretionary authority to determine eligibility for benefits as well as to construe the Plan’s terms, we review Hartford’s denial of benefits for an abuse of discretion. See Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 397 (5th Cir.2007); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). “A plan administrator abuses its discretion where the decision is not based on evidence, even if disputable, that clearly supports the basis for its denial.” Holland v. Int’l Paper Co. Retirement Plan, 576 F.3d 240, 246 (5th Cir.2009) (internal quotation marks and citations omitted). “If the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary or capricious, it must prevail.” Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir.2004). We similarly review a district court’s award of attorneys’ fees in an ERISA case for an abuse of discretion. Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 832 (5th Cir.1996). III. DISCUSSION A. Benefits Determination In reviewing the plan administrator’s decision, we “take into account ... several different considerations.” Metro. Life Ins. Co. v. Glenn, 554" }, { "docid": "22315667", "title": "", "text": "trained employees.’ ”)(citing 29 U.S.C. §§ 1051(2), 1081(a)(3), and 1101(a)(1) (1994)); Spacek v. Maritime Ass'n, 134 F.3d 283, 295 (5th Cir.1998) (\"ERISA exempts top-hat plans from the fiduciary, funding, participation and vesting requirements applicable to other employee benefit plans.”) (quoting Duggan v. Hobbs, 99 F.3d 307, 310 (9th Cir.1996)). We note, in passing, however, that, had resolution of the issue been necessary, we would likely have held in favor of the Plans. In so noting, though, we are mindful that, even though \"no statutory mechanism exists to safeguard the expectations of top hat plan participants in obtaining their deferred compensation,\" Spacek, 134 F.3d at 296, such participants are not without non-statutory protections. See id. at 295-297. . The plan administrator’s concentration on the asset-transfer Change of Control definition and summary treatment of the issue under the GESI Plan's \"dissolution, liquidation, winding up\" provision are not surprising given the'fact that the Beneficiaries relied exclusively on the former definition in advancing their administrative claim that a Change of Control had occurred prior to May 20. The plan administrator's oblique reference to a Change of Control under the latter definition may very well have provided the impetus for the \"winding up” analysis urged by the Beneficiaries for the first time in the district court. . Melton v. Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir.1997). . Barhan v. Ry-Ron Inc., 121 F.3d 198, 201 (5th Cir.1997) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80(1989)). . Id. at 200. . Bellaire Gen'l Hosp. v. Blue Cross Blue Shield of Michigan, 97 F.3d 822, 829 (5th Cir.1996). . Nickel v. Estate of Estes, 122 F.3d 294, 298 (5th Cir.1997). .974 F.2d 631 (5th Cir.1992). . Although we routinely employ this two-step approach in testing de novo a plan administrator's interpretation of a plan for abuse of discretion, rigid adherence to the Wildbur method is not always necessary. See Duhon v. Texaco, Inc., 15 F.3d 1302, 1307-08 & n. 3 (5th Cir.1994) (noting that \"the reviewing court is not rigidly" }, { "docid": "10633370", "title": "", "text": "(1996). Therefore, ERISA has specific provisions regarding decisions that may-affect these expectations. For example, an adverse benefit determination is “any of the following: a denial, reduction, or termination of, or a failure to provide or make payment (in whole or part) for, a benefit.” 29 C.F.R. 2560.503-l(m)(4) (2004). “In the case of a claim for disability benefits, the plan administrator shall notify the claimant ... of the plan’s adverse benefit determination within a reasonable period of time, but not later than 45 days after receipt of the claim by the plan.” 29 C.F.R. 2560.503 — 1(f)(3) (2006). On the other hand, even though Congress strictly guards ERISA plans, where an ERISA plan gives an administrator discretionary authority to determine eligibility for benefits and to construe terms, courts may not reverse the administrator’s benefits determinations absent an abuse of discretion. Meditrust, 168 F.3d at 213. The E-Systems Plan provides discretionary authority to the plan administrator, as does the subsequent Raytheon Plan. Accordingly, we may apply a two-step analysis to determine whether the administrator in this case abused its discretion, first determining whether the administrator’s decision was legally sound and, if it is not, determining whether the decision was an abuse of discretion in any event. Duhon v. Texaco, 15 F.3d 1302, 1307 n. 3 (5th Cir.1994). This court, however, is not confined to this test; we may skip the first step if we can determine the decision was not an abuse of discretion. Id.; see MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 481 (5th Cir.2003); Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 602-03 (5th Cir.2003) (concluding that an ERISA administrator’s determination was not an abuse of discretion and affirming judgment on that basis without considering whether the administrator’s determination was legally correct). Accordingly, in assessing whether MetLife abused its discretion in applying the offset, our analysis bypasses whether MetLife’s determination was legally correct, as the record reflects that it has not abused its discretion. High asserts that the six year gap during which he received both VA benefits and benefits under the E-Systems plan was an unreasonable amount of" }, { "docid": "11462257", "title": "", "text": "plan. See Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637-38 (5th Cir.1992). If, after reviewing these factors, the court finds the administrator’s interpretation incorrect, the court’s inquiry continues. Consequently, the propriety of the administrator’s use of discretion depends on: (1) the internal consistency of the plan under the administrator’s interpretation; (2) any relevant regulations formulated by the appropriate administrative agencies; and (3) the factual background of the determination and any inferences of lack of good faith. Id.; see also Batchelor v. Int’l Bhd. of Elec. Workers Local 861 Pension & Ret. Fund, 877 F.2d 441, 445-48 (5th Cir.1989). On rare occasions, the court can avoid a full-fledged two-step analysis “if an administrator interprets an ERISA plan in a manner that directly contradicts the plain meaning of the plan language.” See Gosselink v. AT&T, Inc., 272 F.3d 722, 727 (5th Cir.2001); see also Duhon v. Texaco, Inc., 15 F.3d 1302, 1307-08 & n. 3 (5th Cir.1994) (“[T]he reviewing court is not rigidly confined to [Wildbur’s] two-step analysis in every case.”). This exception prevents “ ‘the anomalous finding that a Plan administrator’s interpretation which directly violates the plain meaning of the plan language is not an abuse of discretion simply because the plan language has always been interpreted in the same manner and there are no inferences of bad faith.’ ” Baker v. Metro. Life Ins. Co., 364 F.3d 624, 633 (5th Cir.2004) (quoting Gosselink, 272 F.3d at 727). Uniform Construction of Article 16.1(E) The Administrator held, and the Appeals Committee affirmed, that Stone’s continuation bonus offset the elimination of his LTI. Thus, because his continuation bonus at least equaled his target 2006 LTI, Stone did not suffer a material reduction in benefits, or constructive discharge, under Article 16.1(E)(4) of the URP. The Administrator and Appeals Committee uniformly applied this reasoning to all Unocal employees who lost their LTI after Chevron’s change of control. Forty-nine Unocal employees filed for constructive discharge because of the elimination of their LTI. The Administrator denied all forty-nine claims. In each instance, the Administrator explained that Article 16.1(E)(4) did not apply because the employee did not" }, { "docid": "5384510", "title": "", "text": "decision or between the found facts and the decision.” Meditrust, 168 F.3d at 215 (quoting Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996)); see Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 302 (5th Cir.1999) (en banc) (observing that there only need be “concrete evidence in the administrative record that supports the denial of the claim”), overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); Holland, 576 F.3d at 247 (“Our ‘review of the administrator’s decision need not be particularly complex or technical; it need only assure that the administrator’s decision fall somewhere on a continuum of reasonableness—even on the low end.’ ”) (quoting Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007)). In deciding whether there was an abuse of discretion, we also consider whether the plan administrator has a conflict of interest. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). A plan administrator has a conflict of interest if it “both evaluates claims for benefits and pays benefits claims.” Glenn, 554 U.S. at 112, 128 S.Ct. 2343. “[Conflicts are but one factor among many that a reviewing judge must take into account.” Id. at 116, 128 S.Ct. 2343. “[A]ny one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor’s inherent or case-specific importance.” Id. at 117, 128 S.Ct. 2343. “The conflict of interest ... should prove more important (perhaps of great importance) where circumstances suggests a higher likelihood that it affect ed the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.” Id.; see Holland, 576 F.3d at 248 (observing that “the specific facts of the conflict will dictate its importance”). “It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote" }, { "docid": "16464615", "title": "", "text": "“more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Deters v. Sec’y of Health, Educ. & Welfare, 789 F.2d 1181, 1185 (5th Cir.1986)). “A decision is arbitrary only if made without a rational connection between the known facts and the decision or between the found facts and the evidence.” Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir.2009) (citing Meditrust Fin. Servs. Corp., 168 F.3d at 215). Moreover, this court’s “review of the administrator’s decision need not be particularly complex or technical; it need only assure that the administrator’s decision fall[s] somewhere on a continuum of reasonableness — even if on the low end.” Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir.1999) (en banc)). DISCUSSION 1. Abuse of discretion review of the Retirement Board’s 2011 benefits determination Atkins argues the Retirement Board’s benefits determination in 2011, in which the Board adopted Kasher’s arbitration decision that Atkins failed to prove changed circumstances for reclassification to Football Degenerative benefits by clear and convincing evidence, should be reviewed de novo due to two procedural irregularities. Atkins asserts that because Kasher did not have discretionary authority to make a benefits determination under the Plan and because the Retirement Board’s decision to adopt Kasher’s decision was untimely under the Plan’s claims procedures, the district court erred by using abuse of discretion instead of de novo review. Atkins made similar arguments to the district court in seeking de novo review of the Board’s 2011 decision. He challenged, among other things, the Retirement Board’s referral of his appeal to Kasher and the delay in making a benefits determination. In a well-reasoned rejection of these arguments, the district court cited Supreme Court and Fifth Circuit precedent for the proposition that the deferential abuse of discretion standard of review granted to ERISA plan decisions should not be altered absent a finding that the plan administrator “acted in" }, { "docid": "20175619", "title": "", "text": "discretion. When reviewing the administrator’s second decision — interpretation and application of the plan language — for an abuse of discretion, the Fifth Circuit applies a two-step inquiry. Stone v. UNOCAL Termination Allowance Plan, 570 F.3d 252, 257 (5th Cir.2009). First, the court examines whether the determination was legally correct; if so, there can be no abuse of discretion. Id. If not legally correct, then the court proceeds to step two to decide whether the determination was an abuse of discretion. Id. An abuse of discretion occurs when “the decision is not based on evidence, even if disputable, that clearly supports the basis for its denial.” Holland v. Int’l Paper Co. Retirement Plan, 576 F.3d 240, 246 (5th Cir.2009) (internal quotation marks and citation omitted). Such an abuse occurs “only where the plan administrator acted arbitrarily or capriciously,” and a decision is arbitrary when it is made “without a rational connection between the known facts and the decision or between the found facts and the evidence.” Id. (citing Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214-15 (5th Cir.1999)) (internal quotation marks omitted). The decision need only “fall somewhere on a continuum of reasonableness— even if on the low end.” Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir.2007) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir.1999) (en banc), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008)). “Although we generally decide abuse of discretion based upon the information known to the administrator at the time he made the decision, the administrator can abuse his discretion if he fails to obtain the necessary information.” Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1015 (5th Cir.1992). In this case LINA operates under a conflict of interest; it is uncontested both that LINA has discretionary authority to make claims decisions and that it is responsible for paying benefits under the Plan. See Glenn, 128 S.Ct. at 2348 (2008). Although the presence of a" }, { "docid": "20231696", "title": "", "text": "of discretion. See Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 397 (5th Cir.2007); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). “A plan administrator abuses its discretion where the decision is not based on evidence, even if disputable, that clearly supports the basis for its denial.” Holland v. Int’l Paper Co. Retirement Plan, 576 F.3d 240, 246 (5th Cir.2009) (internal quotation marks and citations omitted). “If the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary or capricious, it must prevail.” Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir.2004). We similarly review a district court’s award of attorneys’ fees in an ERISA case for an abuse of discretion. Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 832 (5th Cir.1996). III. DISCUSSION A. Benefits Determination In reviewing the plan administrator’s decision, we “take into account ... several different considerations.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2351, 171 L.Ed.2d 299 (2008). These factors are case-specific and must be weighed together before determining whether a plan administrator abused its discretion in denying benefits. Id. Anyone factor may “act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor’s inherent or case-specific importance.” Id. The interaction between the factors and the substantial evidence test is a relatively new issue after the Supreme Court’s decision in Glenn. We have considered the interplay in only one prior published decision — Holland—in which we found that the conflict of interest was a minimal factor and that the evidence was more than sufficient to support the denial of benefits. 576 F.3d at 251. However, a reviewing court may give more weight to a conflict of interest, where the circumstances surrounding the plan administrator’s decision suggest “procedural unreasonableness.” Glenn, 128 S.Ct. at 2352. Applying Glenn’s “combination-of-factors” method of review, we give more weight to the conflict of interest because Hartford’s decision here suggests" } ]

[ { "docid": "6246487", "title": "", "text": "instance Section 3670 of the Internal Revenue Code, supra, “controls the application of the federal tax lien to whatever ‘property’ or ‘rights to property’ a taxpayer may have finder state law.” Citing State of Michigan v. United States, 317 U.S. 338, 63 S.Ct. 302, 87 L.Ed. 312; Glass City Bank v. United States, 326 U.S. 265, 66 S.Ct. 108, 90 L.Ed. 56; and Detroit Bank v. United States, 317 U.S. 329, 63 S.Ct. 297, 87 L.Ed. 304. They further say that the federal statutes governing federal tax liens are controlling and override any conflicting provisions of state law and cite in support thereof State of Michigan v. United States, supra, United States v. Rosenfield, D.C.E.D.Mich., 26 F.Supp. 433, and In re Dartmont Coal Co., 4 Cir., 46 F.2d 455. Insofar as the foregoing authorities relate to the subject now under consideration, they deal with the question of whether federal estate taxes may be levied on the inheritance of one of the tenants by the entirety upon the death of the other tenant and the dissolution of the tenancy, and whether state statutes may be enacted overriding Acts of Congress fixing the time liens for federal taxes shall take effect, the nature of the lien, and the method for perfecting such liens. The answer to neither of these questions determines or affects the 'rule of property in Missouri defining, without discrimination between the state’s interests and those of the United States, the nature of the estate by the entirety in Missouri. For present purposes it may be assumed that Section 3670, supra, requires the attachment of the federal tax lien to a “right to property” created by state law and that Section 3670 would override a state law (if any existed) providing that a federal tax lien should not apply to a specified “right to property” created by state law. But as indicated, neither of these assumptions aids in defining the interest which one of two tenants by the entirety has in Missouri and hence does not answer the question whether that interest is such an interest in real estate or" } ]

[ { "docid": "1968809", "title": "", "text": "Federal Tax Lien identifying the tax liabilities that had been fully paid.”); Rl-10-Exh. 1-2 (Declaration of Toney Altieri) (\"[A] tax lien ... is released when a certificate of release Form 668(Z) is filed for the appropriate tax periods.”); Appellee’s Brief at 7 (”[T|he United States contend[s] that it ... satisfied the requirements of I.R.C. § 6325 by timely filing certificates of release of Federal Tax Liens which identified those tax liabilities which had been satisfied, thereby resulting in the release of the liens.”). . Separate certificates of release were filed for each notice, and the certificates listed accordingly the differing assessment amounts. See R-l-17-Exhs. C, D, Appendix A: Notice Nos. 1 & 2(c); Rl-17-Exhs. C-l, D-l, Appendix B: Release Nos. 1 & 2(c). . This may be because the IRS's manual provides that the refiled notice of federal tax lien should \"reflect the current unpaid balance of assessment.” IRS Manual § 535(11).71 (Apr. 29, 1992). . Cf. United States v. Union Cent. Life Ins. Co., 368 U.S. 291, 294, 82 S.Ct. 349, 351, 7 L.Ed.2d 294 (1961) (“While § 3672(a)(1) unquestionably requires notice of a federal lien to be filed in a state office when the State authoritatively designates an office for that purpose, the section does not purport to permit the State to prescribe the form or the contents of that notice. Since such an authorization might well result in radically differing forms of federal tax notices for the various States, it would run counter to the principle of uniformity which has long been the accepted practice in the field of federal taxation.\"). . The use of serial numbers and recording information are two reasonable ways of accomplishing this goal. . Senate Report No. 1708, which preceded enactment of the Federal Tax Lien Act of 1966, unequivocally indicates Congress's purpose behind requiring refiling of the liens. The Senate report states: Public notice of the existence of a Federal tax lien is given under present law by the filing of a notice of the lien. As indicated previously, various interests may come ahead of a Federal tax lien if they" }, { "docid": "23515732", "title": "", "text": "CLARK, Chief Judge. This appeal by the United States involves the relative priority of a federal tax lien and a mechanic’s lien under state law. The defaulting taxpayer, Preferred Contractors, Inc., had performed contracting services on premises in New York City for Standard Tinsmith & Roofer Supply Corporation for which it had not been fully paid. When the United States sought to assert its statutory lien under I.R.C. § 3670 on this debt, it was informed that Standard was Folding the sum in trust for Kings County Iron Works, Inc., a subcontractor of Preferred, which claimed a mechanic’s lien. Ultimately Standard paid the amount in question into court for judicial determination of priority between the United States and Kings. The facts of indebtedness of Preferred to the United States, of Preferred to Kings, and of Standard to Preferred have not been contested by any of the parties concerned. The district court awarded priority to Kings as a “purchaser” protected from unfiled federal liens pursuant to I.R.C. § 3672, and as a prior lienor by virtue of its filing of its mechanic’s lien in New York County on August 27, 1947. Judge Abruzzo concluded that the government’s prior filing on August 21 in Kings County, where Preferred resided, was defective in that under N.Y. Lien Law, McKinney’s Consol.Laws, c. 33, § 240 the government should also have filed in New York County, where the funds and premises in question were located. D.C.E.D.N.Y., 122 F.Supp. 219. The government’s appeal challenges Judge Abruzzo’s final conclusion, as well .as his subordinate findings concerning the character of the mechanic’s lien and the sufficiency of the government’s filing. The Internal Revenue Code gives the .government a broad lien for tax collection purposes. I.R.C. §§ 3670-3672, 26 U.S.C. §§ 3670-3672. This lien attaches to property of the taxpayer at the time that the local collector receives the appropriate assessment lists. From then on, the lien is fully perfected against all subsequent liens and interests except that of a mortgagee, pledgee, purchaser, or judgment creditor of the taxpayer. For full protection, even against these special classes, notice of" }, { "docid": "22074366", "title": "", "text": "property” under the section, id., at 59; finally, the priority of liens is determined by the principle “first in time, first in right,” United States v. New Britain, 347 U. S. 81 (1954). Applying New York law, this results in the bank’s lien being the senior one on the entire proceeds of the policies with the tax lien only attaching to the cash surrender value subject to the bank’s claim. The narrow question remaining is whether in such a situation the doctrine of marshaling ,of assets is compelled. III. This Court has said that “[t]he equitable doctrine of marshalling [sic] rests upon the principle that a creditor having two funds to satisfy his debt, may not by his application of them to his demand, defeat another creditor, who may resort to only one of the funds.” Sowell v. Federal Reserve Bank, 268 U. S. 449, 456-457 (1925). The Courts of Appeals of two Circuits have applied the doctrine, despite state law, to the collection of federal tax liens. United States v. Behrens, supra, and United States v. Wintner, 200 F. Supp. 157, aff’d 312 F. 2d 749 (C. A. 6th Cir.). We note, however, that Behrens antedates our Stern and Bess opinions as well as those in Aquilino v. United States, 363 U. S. 509 (1960), and United States v. Durham Lumber Co., 363 U. S. 522 (1960). These latter two cases held that competing liens of the Government for taxes and of subcontractors for labor and materials to a fund due the taxpayer under a general construction contract were controlled by applicable state law. This Court has never applied the doctrine of marshaling to federal income tax liens although it did deny the petition for certiorari filed in the Behrens case, supra, 351 U. S. 919. Nor has the Congress seen fit to lay down any rules with reference to the application of the doctrine, apparently leaving the problem to this Court. IV. In considering the relevance of the doctrine here it is well to remember that marshaling is not bottomed on the law of contracts or liens. It" }, { "docid": "22769169", "title": "", "text": "clerk of the United States district court for the judicial district in which the property subject to the lien is situated . . . .” The Supreme Court of New Hampshire held that since notice of the Government’s lien was not filed until August 6, 1948, and the Town’s taxes were assessed on April 1, 1947, and April 1, 1948, respectively, and such tax assessments are “in the nature of a judgment” under the law of New Hampshire, the Town was a judgment creditor within the meaning of § 3672, and the Government’s lien was not valid as against the Town’s. Was the Town a judgment creditor within the meaning of § 3672? The New Hampshire Supreme Court in the instant case said: “It is settled by our decisions that the assessment of a tax is in the nature of a judgment, enforced by a warrant instead of an execution. Boody v. Watson, 64 N. H. 162, 167; Jaffrey v. Smith, 76 N. H. 168, 171; Nottingham v. Company, 84 N. H. 419. See also, Automatic Sprinkler Corp. v. Marston, 94 N. H. 375.” 97 N. H. 411, 414, 90 A. 2d 499, 502. We would not question or presume to say what the nature and effect of a tax proceeding is in New Hampshire. The state is free to give its own interpretation for the purpose of its own internal administration. United States v. Waddill Co., 323 U. S. 353. See also Howard v. Commissioners of Louisville Sinking Fund, 344 U. S. 624. The Supreme Court of New Hampshire freely concedes, however, as it must, that the meaning of a federal statute is for this Court to decide. United States v. Security Trust & Savings Bank, 340 U. S. 47. Congress enacted § 3672 to meet the harsh condition created by the holding in United States v. Snyder, 149 U. S. 210, when federal liens were few, that a secret federal tax lien was good against a purchaser for value without notice. A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore," }, { "docid": "23515744", "title": "", "text": "judgment creditors of the taxpayer. I.R.C. § 3672. In this case the government sought the fullest measure of protection by filing notices of its lien by August 21, 1947, in Kings County, where the taxpayer Preferred resided. Judge Abruzzo found this filing fatally defective, presumably under the last sentence of N.Y. Lien Law § 240, subd. 2, enacted pursuant to I.R.C. § 3672(a) (1). The New York law provides: “If the property is in the city of New York at the time the lien arises, the notice or certificate shall be filed in the county within the city of New York or in the town or city where the owner, or each of several owners who are residents of the state, resides at the time the lien arises, and also in the county where the property is situated.” While we are disposed to disagree with the conclusion below that a debt should be considered to have a situs apart from that of its owner, the creditor, see Investment & Securities Co. v. United States, 9 Cir., 140 F.2d 894, we need not finally decide that issue here, since we are convinced that Kings does not fall within any of the special classes against whom filing is required. The only claim made by Kings to come within the protection of I.R.C. § 3672 is that it should be considered as akin to a purchaser. This was in effect the holding of Cranford Co. v. L. Leopold & Co., supra. Since then, the Supreme Court has had occasion to discuss the definition of “purchaser” in this context, in a case dealing with a landlord’s distress lien. United States v. Scovil, supra, 348 U.S. 218, 221, 75 S.Ct. 244, 247. In refusing to consider the landlord a purchaser, the court said: “A purchaser within the meaning of § 3672 usually means one who acquires title for a valuable consideration in the manner of vendor and vendee.” It is obvious without further discussion that Kings, even as statutory as-signee of a trust fund, is not a purchaser for federal tax purposes. The judgment of" }, { "docid": "5973933", "title": "", "text": "Court. “American Bowling” has defaulted, the State Tax Commission has appeared but not answered. And there the matter stands for our decision as to whether the Tax liens of the Government are superior to those of the plaintiff. We hold that they are. It is the plaintiff’s contention that the ■Government tax liens are defective and invalid because of its failure to comply with Sections 240 and 241 of the N. Y. Lien Law, McK.Consol.Laws, c. 33. The tax liens arose on the date copies of the assessment lists were received by the Collector (now called the District Director) of Internal Revenue and upon the condition that demand was made on the taxpayer for payment (See. 3670, I.R.C.1939, 26 U.S.C.A. § 3670; United States v. Scovil, 1955, 348 U.S. 218, 75 S.Ct. 244, 99 L.Ed. 271). To make these liens valid as against any judgment creditor it was required that they be recorded “in the office in which the filing of such notice is authorized by the law of the State or Territory in which the property subject to the lien is situated * * Sec. 3672, I.R.C.1939, 26 U.S.C.A. § 3672; United States v. Scovil, supra. Here the property sought to be subjected to the liens was located in the County, City and State of New York and Section 240 of the N. Y. Lien Law designates the office for the filing of tax liens on personal property and Section 241 provides for the manner of filing. Notices of Tax Liens were filed in the Office of the City Register in the County of New York on September 9, 1952. This was the County in which “American Bowling” by its certificate of incorporation was required to maintain its principal office (Gerhauser Bros. v. Estopco Inc., Sup.1937, 293 N.Y.Supp. 544, N. Y. Stock Corporation Law, § 35), and was also the County in which the property in dispute was located. This was in compliance with the provisions of Section 240(2) of the Lien Law which provides that such “notices of liens upon personal property for taxes payable to the United" }, { "docid": "2042098", "title": "", "text": "question of whether or not the state may set off against its debt to the taxpayer the taxes owed by the taxpayer to the state. It is unquestioned that under Secs. 3672 and 3710(a), Title 26, U.S.C.A., the rights of the Collector do not extend beyond those of the taxpayer whose right to property is sought to be levied upon. U. S. v. Winnett, 9 Cir., 1947, 165 F.2d 149. If the state had a right of set-off against the taxpayer prior to the United States’ asserted lien and priority, the Collector would be bound to recognize the right of the state to set-off. The 1942 income tax assessment against the taxpayer, Warren C. Graham, was received by the Collector on March 23, 1945, more than a year and three months before the leases with the State of California were entered into. The tax due under this assessment is still due. Any money that accrued to the taxpayer under the lease with the state accrued with a lien impressed upon it. There was no period of time in which the State of California’s right of set-off could have been asserted against the debt to the taxpayer that the property was not impressed with the tax lien. In U. S. v. Winnett, supra, the right of set-off accrued before any tax liens arose. The plaintiff contends that the State of California had no right of set-off in any case. It is true that the state had taken no steps to collect the delinquent taxes prior to the time the tax liens were established. None of the taxes due to the State of California had been determined or assessed when notices of the federal tax liens were filed. The plaintiff argues that the provisions for the collection of taxes are exclusive and that set-off is not one of the remedies for the collection of taxes. The State of California argues that Section 45.9 of the Unemployment Insurance Act, 3 Deering’s California General Laws. Act 8780d, makes the collection remedies set forth in the 'act cumulative. The determination of this question is not" }, { "docid": "22175060", "title": "", "text": "Britain was over that portion of the proceeds of a real estate mortgage foreclosure sale which exceeded the amount of the mortgage. The City of New Britain, in virtue of its unpaid annual ad valorem tax liens which attached to the real estate on October 1 in each of the years 1947 through 1951, and its water-rent liens which had accrued from December 1, 1947, to June 1, 1951, claimed priority of right to the fund over general federal tax liens against the mortgagor which had been effected under §§ 3670 and 3671 by deposit of assess ment lists in the Collector’s office on various dates between April 26, 1948, and September 21, 1950. Thus, some of the City’s liens had attached to the real estate prior to receipt by the Collector of the assessment lists and some had not. This Court was not there dealing with any mortgage, pledge or other contractual lien, but was only dealing, as it said, with “statutory liens” (id., at 84); and in deciding the issue of their priority it observed that, although §§ 3670 and 3671 created a lien in favor of the United States upon all property of the taxpayer as of the time the assessment list was received by the Collector, “Congress [had] failed to expressly provide for federal priority . . .” (id., at 85) under those sections, and the Court held “. . . that priority of these statutory liens is [to be] determined by [the] principle of law [that] 'the first in time is the first in right.’ ” Ibid. The Court then vacated the judgment of the state court and remanded the case for determination of the order of priority of the various liens asserted, in accordance with the opinion. We think it is not only apparent that § 3672 (a) had no application to that case but also that the Court expressly so declared. It noted that the City of New Britain contended that, because applicable state statutes provided that real estate tax and water-rent liens should take precedence over all other liens and encumbrances and" }, { "docid": "22074386", "title": "", "text": "522, 526-527; Propper v. Clark, 337 U. S. 472, 486-487. The Court of Appeals has frequently dealt with § 166 of the New York Insurance Law. See for example Fried v. New York Life Ins. Co., 241 F. 2d 504; United States v. Behrens, 230 F. 2d 504, cert. denied, 351 U. S. 919; Rowen v. Commissioner, 215 F. 2d 641. Where the tax lien is inferior to local lien A but superior to local lien B, the tax lien is to be paid even though lien A, superior to the federal lien, is cut out because under local law it is inferior to lien B. United States v. Buffalo Savings Bank, 371 U. S. 228; United States v. City of New Britain, 347 U. S. 81. In the case at bar there is more reason to recognize and pay the tax lien; for if it is paid, it is only an inferior interest, that of the beneficiary, which is invaded. “The equitable doctrine of marshalling rests upon the principle that a creditor having two funds to satisfy his debt, may not by his application of them to his demand, defeat another creditor, who may resort to only one of the funds.” Sowell v. Federal Reserve Bank, 268 U. S. 449, 456-457. See also Merrill v. National Bank of Jacksonville, 173 U. S. 131, 138; Scruggs v. Memphis & Charleston R. Co., 108 U. S. 368; Savings Bank v. Creswell, 100 U. S. 630, 641; Fenwick v. Chapman, 9 Pet. 461, 474 ; 2 Story’s Equity Jurisprudence, §§ 758, 760, 853-871; 2 Pomeroy's Equity Jurisprudence, §§396, 410; 4 Pomeroy’s Equity Jurisprudence, § 1414. Since § 166 would not protect the insurance proceeds from creditors’ claims where the insured or his estate is the beneficiary, I would suppose the Court’s opinion would likewise permit payment of the tax lien in such circumstances. Would the same apply to where the executor or administrator is the beneficiary? And what is the result when the beneficiary is the insured’s partner or business associate, or a corporation in which he has an interest?" }, { "docid": "23367786", "title": "", "text": "of res judicata. This Court held that res judicata barred the new action, stressing the fact that the respondents had not raised the constitutional claim in the original action. The Court noted generally that the actual existence of a statute, prior to determination of its unconstitutionality “is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. . . . Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.” 308 U. S., at 374. The District Court here found that this Court’s decision in Union Central amounted to an invalidation of the Michigan statute providing for local filing of federal tax lien notices, and that the Carlsons had justifiably relied upon the state statute, prior to its invalidation, in purchasing Donnelly’s property without first searching the records of the federal court. Quoting the above language from Chicot County the court held that the Carlsons’ reliance on the subsequently invalidated statute was sufficient to give them priority over the earlier filed tax lien. In our view, Chicot County does not support failure to apply Union Central here. In the first place, the Union Central decision did not invalidate any statute, state or federal. It merely construed § 3672, in accordance with the clear language of the statute, to authorize the filing of tax lien notices in federal court where the state law failed to provide for local filing. It determined, as the courts and other authorities who had considered the question had all agreed, that Michigan law did not authorize the filing of the standard federal lien notice, which lacked the description of the land required by the Michigan filing statute. Finally it held, in accordance with the will of Congress as expressed in the 1942 amendment to § 3672 and the accompanying legislative history, that state law imposing more onerous requirements of content on lien" }, { "docid": "22175064", "title": "", "text": "perfect a lien exists.” Id., at 50. Naturally, in those circumstances, the tax liens which became perfected in December 1946 were superior to the attachment lien which did not become perfected until May 1947. There, as in New Britain, this Court was not dealing with any mortgage, pledge or other contractual lien, or with any question of priority of an antecedent mortgage over subsequently filed tax liens. It thus seems quite clear to us that the New Britain and Security Trust cases did not involve the question here presented nor deal with the statute here conceded to be controlling and, therefore, they do not in any way support the Court’s decision here. We also think that, under the law and the facts in this record, the “assignment” was in legal effect a “mortgage,” and inasmuch as it antedated the filing of the federal tax liens it was superior to them under the expressed terms of § 3672 (a). That section does not define the term “mortgagee” and, hence, we must assume that it was there used in its ordinary and common-law sense. United States v. Gilbert Associates, Inc., 345 U. S. 361, 364; United States v. Security Trust & Savings Bank, supra, at 52 (concurring opinion). Substance, not form or labels, controls the nature and effect of legal instruments. “State law creates legal interests and rights.” Morgan v. Commissioner, 309 U. S. 78, 80. The law of Texas, where the questioned assignment was made and was to be performed, makes such an “assignment” a valid mortgage. Southern Surety Co. v. Bering Mfg. Co., 295 S. W. 337, 341; Williams v. Silliman, 74 Tex. 626, 12 S. W. 534. Although the relation of a state-created right to federal laws for the collection of federal credits is a federal question, the State’s classification of state-created rights must be given weight. United States v. Security Trust & Savings Bank, supra, at 49-50. Here, the State’s determination that such assignments are mortgages in legal effect, and its classification of them accordingly, is not met by anything of countervailing weight. The period of the assignment" }, { "docid": "23302351", "title": "", "text": "adjudication in bankruptcy.” The lien and priority claims of the United States are based upon §§ 3670-3672 of the Internal Revenue Code, 26 U.S. C.A.Int.Rev.Code, §§ 3670-3672, for gasoline taxes due under § 3412(a) of the Internal Revenue Code, 26 U.S.C.A.Int.Rev. Code, § 3412(a). In sub-stance these sections provide that when a tax is not paid it becomes a lien, effective at the time the assessment list is received by the collector. It is provided that the lien shall not be valid against a mortgagee, pledgee, purchaser, or judgment creditor until notice of the lien is filed with certain local officials or with the clerk of the District Court. The language of § 3672, however, has been interpreted to mean that a lien of the United States is inferior to all mortgage or judgment liens which were acquired prior to the date of recording or filing of the notice. See Fox v. Queens County Sales Co., Inc., D.C.N.Y.1931, 52 F.2d 794; Minnesota Mutual Life Insurance Co. v. United States, D.C.Tex.1931, 47 F.2d 942. All requisites for the attachment of government’s liens for gasoline taxes claimed on appeal were fulfilled prior to the filing of the petition on May 12, 1942. Specifically the issue deals with the relative priorities of the United States as a lien claimant and California as a lien claimant under the facts obtaining. The tax liens asserted by the State of California were inchoate as to amount, but were fixed and attached to the real property of the debtor on January 1, 1939, and January 1, 1940, both of these dates being prior to the time that the Federal tax liens attached to such property. See California Bank and Corporation Franchise Tax Act, Deering California General Laws (1939 Supp.), Act 8488, §§ 25, 29. The government contends that since the state lien is general and inchoate that the United States lien being specific and perfect, arising at the times the assessment lists were received, was thereby given priority over the state lien. It is also contended by the government that § 3672 of the Internal Revenue Code," }, { "docid": "23367793", "title": "", "text": "of deeds shall, upon receiving a filing fee of fifty cents for such notice, file and index the same . . . .” Nor is it significant that the lien notice here was filed in \"i£)50, before the Michigan Attorney General’s opinion referred to by the District Court (opinion of the Attorney General of Michigan, No. 1709, September 10, 1953), whereas the fifing in Union Central came in 1954, after that opinion was rendered. The Attorney General’s opinion merely declared what was already the law of Michigan. In Youngblood, the United States sought an order in the nature of a writ of mandamus to compel a county register of deeds in Michigan to accept and file a standard federal lien notice, which lacked the description of the encumbered land required by the state statute. The Court of Appeals held that the order should not issue, first, because United States district courts lack jurisdiction to issue original writs of mandamus or orders in the nature of mandamus; and second, because the law of Michigan clearly provided in terms that in order to be filed with the register of deeds, a federal tax lien notice had to contain a description of the land. The court went on, in apparent dictum, to confirm its earlier holding in United States v. Maniaci, 116 F. 2d 935 (1940), aff'g 36 F. Supp. 293 (D. C. W. D. Mich. 1939), that §3672 required the United States to file in the local office hen notices conforming to the state law requirements as to content. In delivering this apparent dictum, the Court of Appeals ignored the clear legislative history, summarized in this Court’s Union Central decision, 368 U. S., at 295-296, which showed that in enacting the 1942 amendment to § 3672, Congress had meant to disapprove the Maniaci holding. The Carlsons have raised additional defenses to the foreclosure suit brought by the United States, but as these defenses were not considered by the District Court or the Court of Appeals, we do not rule on them here. Mr. Justice Harlan, concurring. I fully agree that the Government" }, { "docid": "22074385", "title": "", "text": "tanto and, in effect, constituted the trust company the primary beneficiary to the extent necessary to satisfy its loan to him and appellant, the secondary beneficiary, as to any residue which may remain. Under section 52 of the Domestic Relations Law and section 55-a of the Insurance Law, the wife may acquire a vested irrevocable right to the proceeds of the policy, free from the claims of the husband’s creditors and representatives, only if the husband die without exercising his reserved right to change the beneficiary in accordance with the provisions of the policy. Here the husband exercised that right to the extent necessary to satisfy his loan. Hence, when the trust company applied the proceeds of the policy to the payment of the loan, it was not utilizing appellant’s property and she could not be subrogated to the rights of the bank with respect to the stock of the Fairview Foundry Incorporated.” In re Kelley’s Estate, 251 App. Div. 847-848, 296 N. Y. Supp. 923-924. United States v. Durham Lumber Co., 363 U. S. 522, 526-527; Propper v. Clark, 337 U. S. 472, 486-487. The Court of Appeals has frequently dealt with § 166 of the New York Insurance Law. See for example Fried v. New York Life Ins. Co., 241 F. 2d 504; United States v. Behrens, 230 F. 2d 504, cert. denied, 351 U. S. 919; Rowen v. Commissioner, 215 F. 2d 641. Where the tax lien is inferior to local lien A but superior to local lien B, the tax lien is to be paid even though lien A, superior to the federal lien, is cut out because under local law it is inferior to lien B. United States v. Buffalo Savings Bank, 371 U. S. 228; United States v. City of New Britain, 347 U. S. 81. In the case at bar there is more reason to recognize and pay the tax lien; for if it is paid, it is only an inferior interest, that of the beneficiary, which is invaded. “The equitable doctrine of marshalling rests upon the principle that a creditor having two" }, { "docid": "23515733", "title": "", "text": "of its filing of its mechanic’s lien in New York County on August 27, 1947. Judge Abruzzo concluded that the government’s prior filing on August 21 in Kings County, where Preferred resided, was defective in that under N.Y. Lien Law, McKinney’s Consol.Laws, c. 33, § 240 the government should also have filed in New York County, where the funds and premises in question were located. D.C.E.D.N.Y., 122 F.Supp. 219. The government’s appeal challenges Judge Abruzzo’s final conclusion, as well .as his subordinate findings concerning the character of the mechanic’s lien and the sufficiency of the government’s filing. The Internal Revenue Code gives the .government a broad lien for tax collection purposes. I.R.C. §§ 3670-3672, 26 U.S.C. §§ 3670-3672. This lien attaches to property of the taxpayer at the time that the local collector receives the appropriate assessment lists. From then on, the lien is fully perfected against all subsequent liens and interests except that of a mortgagee, pledgee, purchaser, or judgment creditor of the taxpayer. For full protection, even against these special classes, notice of the tax lien must be filed in the places designated by state law, or in the appropriate district court if the state has failed so to designate. Here the assessment lists were all received prior to August 21, 1947, when notices of the liens were filed. Apart from the appropriateness of this filing under N.Y. Lien Law § 240, the government argues that no perfected prior interests existed as of this date and that filing is not required for perfection of its lien against Kings. New York law provides Kings as a mechanic’s lienor with two separate and distinct forms of protection for its claim. One of these is the ordinary lien on the real estate improved by Kings’ services, which lien Kings perfected by filing on August 27, 1947. N.Y. Lien Law § 13 (5). The other, on which Kings mainly relies here, is an interest in the funds which the owner of the improved real estate owes the prime contractor. These funds are deemed a trust fund for the payment of subcontractors, N.Y." }, { "docid": "16104733", "title": "", "text": "sold is a lien upon the land and not the land itself. This interest does not make the County a “purchaser”, and that is equally true when it passes to the appellants. United States v. City of New York, supra. In any event, the failure of the United States to place a section and block description on its notice of lien does not invalidate the lien against later-acquired interests. It was filed in the proper office, that of the Nassau County Clerk, and was easily discoverable through a search of the separate alphabetical index of federal tax liens. The state is permitted to designate the place of filing under § 3672(a) (1), and the government complied with this designation, but the state may not add further requirements for validity. See United States v. Union Central Life Ins. Co., 368 U.S. 291, 82 S.Ct. 349, 7 L.Ed.2d 294 (1961). A contrary result would unduly complicate federal tax collection and, in this situation, require a constant policing effort by the Collector to bring the recording up to date so that it would apply to after-acquired property, as it rightfully does under the federal law. See § 3670,I.R.C. of 1939. As the lien is thus valid against the appellants, and it is admittedly prior in time, ordinarily this would be the end of the case. United States v. City of New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954) specifically has held that later-arising local tax liens were not to be paid prior to an earlier federal tax lien, despite state law to the contrary. “Priority of these statutory liens is determined by another principle of law, namely, ‘the first in time is the first in right.’ ” Id. at 85, 74 S.Ct. at 370. But appellant directs our attention to Buffalo Savings Bank v. Victory, 11 N.Y.2d 31, 226 N.Y.S.2d 382, 181 N.E.2d 413 (1962), cert. granted 370 U.S. 915, 82 S.Ct. 1554, 8 L.Ed.2d 497. As we understand this decision, it holds that local taxes may by state law (New York Civ. Prac. Act § 1087) be made" }, { "docid": "22548550", "title": "", "text": "taxpayer. Or, to put it more simply, the tax collector stands in the shoes of the taxpayer when reaching the taxpayer’s property”); Reid, Tax Liens, Their Operation and Effect, New York University Ninth Annual Institute on Federal Taxation 563, 568 (1951) (“It is clear, of course, that the government’s rights as lienor are no greater than the rights of the tax-debtor”); Clark, Federal Tax Liens and Their Enforcement, 33 Va. L. Rev. 13, 17 (1947) (“It is obvious, of course, that the federal tax lien can only reach the property of its tax-debtor and that [the Government’s] rights as lienor to property or rights to property of its tax-debtor can rise no higher than the rights of the latter in that property or rights to property”). Much like the current § 7403, the initial version authorized suit by the Commissioner “to enforce the lien of the United States for tax upon any real estate, or to subject any real estate owned by the delinquent, or in which he has any right, title, or interest, to the payment of such tax.” Act of July 20, 1868, ch. 186, § 106, 15 Stat. 125, 167. Despite the absolute language of 42 U. S. C. § 1983, the Court has concluded that “§ 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Imbler v. Pachtman, 424 U. S. 409, 418 (1976). The Court has assumed that “members of the 42d Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary.” Newport v. Fact Concerts, Inc., 453 U. S. 247, 258 (1981). Pursuant to this approach, the Court has applied various common-law immunities to § 1983 actions. See, e. g., Briscoe v. LaHue, 460 U. S. 325 (1983) (witnesses); Nixon v. Fitzgerald, 457 U. S. 731 (1982) (President); Imbler v. Pachtman, supra (state prosecutor); Scheuer v. Rhodes, 416 U. S. 232 (1974) (state executive officers); Pierson v. Ray, 386 U. S. 547" }, { "docid": "4718961", "title": "", "text": "RYAN, District Judge. This suit for unpaid assessed income taxes is before me on cross-motions for summary judgment. The parties, by stipulation, have removed all factual issues, and I am asked to determine the priority rights between the Government and judgment creditors in a fund deposited into court by defendants Caledonian Ins. Co. and Fire Asso. Section 3672(a), 26 U.S.C.A., which provides that the federal tax lien shall not be valid as against a judgment creditor until notice has been filed with the clerk of the district court and as provided by local law, was enacted to mitigate the effects of the judicial determination that a secret federal tax lien was valid against a bona fide purchaser from the taxpayer after the federel lien had been perfected. United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071. The manner in which the Government filed its lien here is insufficient to secure to it rights superior to judgment creditors who extended credit to the taxpayer subsequent to filing and who perfected their liens against the taxpayer based upon those extensions of credit before the Government perfected its lien. By Section 3672 the Government is required to file its lien (1) “in the office in which the filing of such notice is authorized by the law of the State or Territory in which the property subject to the lien is situated * * Section 922 of the New York County Law, 11 McKinney’s Consol. Laws, provides that the County Clerk of New York County shall maintain judgment dockets which “must have a separate volume or volumes for each letter of the alphabet.” “A judgment is not docketed against any particular property, but solely against a name, and if that name is incorrectly set forth, a purchaser in good faith should not be the one to suffer; but rather the creditor, who should see to it that the docketing is in the correct name of the debtor, if it is to be notice to subsequent purchasers.” Grygorewicz v. Domestic and Foreign Discount Corp., 179 Misc. 1017, 40 N.Y.S.2d 676," }, { "docid": "23515735", "title": "", "text": "Lien Law §§ 13(7), 36-a, and the trust fund arises when the subcontractor performs his services. Thus the main question before us is the relative priority of the federal tax lien and the antedating interest which Kings has in this state-created trust fund. Generally speaking, the federal tax lien can be defeated only in one of three ways. Competing lienors may establish that the property on which the government seeks to levy is not the property of the taxpayer at all. They may claim a prior specific and perfected lien entitled to precedence under the rule that “ ‘the first in time is the first in right.’ ” United States v. City of New Britain, 347 U.S. 81, 85, 74 S.Ct. 367, 370, 98 L.Ed. 520. Or, as long as the federal lien is unfiled, they may seek to bring them selves within the classes of creditors discussed above, which are specifically protected by I.R.C. § 3672. All these questions — whether the property is that of the taxpayer, whether a prior lien is sufficiently perfected, whether a creditor can qualify as “mortgagee, pledgee, purchaser, or judgment creditor” — are, in the final analysis, matters of federal law, although state law will be considered where relevant. United States v. Security Trust & Savings Bank of San Diego, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53; United States v. Gilbert Associates, Inc., 345 U.S. 361, 73 S.Ct. 701, 97 L.Ed. 1071; United States v. Acri, 348 U.S. 211, 75 S.Ct. 239; United States v. Liverpool & London & Globe Ins. Co., 348 U.S. 215, 75 S.Ct. 247; United States v. Scovil, 348 U.S. 218, 75 S.Ct. 244; Rowen v. C. I. R., 2 Cir., 215 F.2d 641. The reason for broad reference to federal principles is the obvious desirability of uniformity in the application of our federal tax laws. Kings here argues that on all three rationales it is entitled to priority over the federal tax lien, as Judge Abruzzo held. Its main argument for precedence is based on the trust fund created by New York law for the benefit" }, { "docid": "22613684", "title": "", "text": "to what extent Georgia treats repairman’s liens as superior to previously perfected consensual liens. Nor did the court assess the sufficiency of the FHA’s financing statement under Georgia law. Because “[t]he federal judges who deal regularly with questions of state law in their respective districts and circuits are in a better position than we to determine how local courts would dispose of [such] issues,” Butner v. United States, ante, at 58 (footnote omitted), we vacate the judgment in No. 77-1644 and remand for resolution of these issues. So ordered. 436 U. S. 903 (1978); 439 U. S. 817 (1978). Tex. Bus. & Com. Code Ann. § 9.101 et seq. (1968). Section 7 (a) of the Small Business Act, 72 Stat. 387, as amended, 15 U. S. C. §636 (a)(1), permits extension of financial assistance to small businesses when funds are “not otherwise available on reasonable terms from non-Federal sources.” The SBA prefers to guarantee private loans rather than to disburse funds directly. § 636 (a) (2); 13 CFB, §§ 120.2 (b)(1), 122.15 (c) (1978). See n. 36, infra. Jurisdiction was premised on 28 U. S. C. § 2410. The tax liens were authorized by 26 U. S. C. § 3670 (1952 ed.), currently codified at 26 U. S. C. § 6321. This statute established the time when the tax hen arose, 26 U. S. C. §3671 (1952 ed.), currently codified at 26 TJ. S. C. § 6322, and required the filing of notice for the lien to be valid against specified creditors. 26 U. S. C. §3672 (1952 ed.), currently codified, as amended, at 26 U. S. C. § 6323 (a). But until 1966, the statute did not specify priority rules to resolve conflicts between federal tax liens and rival hens. The Federal Tax Lien Act of 1966, 80 Stat. 1125, as amended, 26 U. S. C. §§ 6323 (b), (c), (d), (e), set specific priorities to displace the doctrines that this Court had created. See infra, at 738. This well-accepted common-law principle for resolving hen priority disputes, see Rankin v. Scott, 12 Wheat. 177, 179 (1827); United States v." } ]

[ { "docid": "16643857", "title": "", "text": "S.Ct. 1185, 55 L.Ed.2d 443 (1978). Even when Congress’ intent is unclear, state law must nevertheless yield when it conflicts with federal law. In making the determination of whether state law conflicts with federal law, the test to apply is whether “it is impossible to comply with both state and federal law” or whether “the state law stands as an obstacle to the accomplishment of the full purposes and objectives” of the relevant federal law. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984); see also Feikema v. Texaco, Inc., 16 F.3d 1408, 1413 (4th Cir.1994). In enacting the Parity Act, Congress clearly intended to preempt state law to the extent it authorized non-federally chartered housing creditors to take advantage of the federal regulations for alternative mortgage transactions that govern federally chartered lending institutions. Section 802(a)(3) of the Parity Act states that the Office of Thrift Supervision (“OTS”), formerly known as the Federal Home Loan Bank Board, as well as other agencies, “have recognized the importance of alternative mortgage transactions and have adopted regulations authorizing federally chartered depository institutions to engage in alternative mortgage financing.” 12 U.S.C. § 3801(a)(3). And § 3801 continues, “It is the purpose of this title to eliminate the discriminatory impact that those regulations have upon nonfederally chartered housing creditors and provide them with parity with federally chartered institutions by authorizing all housing creditors to make ... alternative mortgage transactions so long as the transactions are in conformity with the regulations issued by the Federal agencies.” Id. § 3801(b). The operative language of the Parity Act, contained in 12 U.S.C. § 3803, provides that state-chartered deposit institutions and other non-federally chartered housing creditors “may make ... alternative mortgage transactions” to the extent that they are “made in accordance with [federal] regulations governing alternative mortgage transactions ... for federally chartered savings and loan associations” and that the regulations are legally issued by the OTS or other relevant agency. Id. § 3803(a)(3). And critically, the same section provides that a non-federally chartered housing creditor may make an alternative mortgage transaction pursuant to" } ]

[ { "docid": "8517098", "title": "", "text": "court to adopt, Quicken argues that “the Parity Act’s preemptive scope is not limited to state restrictions that conflict with regulations identified by the OTS.” We are therefore asked to articulate the preemptive scope of the Parity Act. Notwithstanding §§ 3801(b) and 3803(c), Congress explicitly referred to the ongoing validity of state licensing requirements and “regulatory requirements and enforcement mechanisms provided by State law” governing housing creditors. 12 U.S.C. § 3802(2). Given this explicit reference, Congress did not intend to preempt all state regulation. Quicken does not seek this ‘absolute parity’ holding, and we do not adopt it. See also Black, 112 Cal.Rptr.2d at 457 (declining to read § 3801(b) to require absolute parity or complete preemption). We must therefore determine the scope of the clause: “notwithstanding any State constitution, law, or regulation.” 12 U.S.C. § 3803(c). Other courts asked to rule on the preemptive scope of the Parity Act have confronted direct conflicts between state laws and OTS regulations. See, e.g., Nat’l Home Equity Mortgage Ass’n v. Face, 239 F.3d 633 (4th Cir.2001) (state prepayment law); Shinn v. Encore Mortgage Servs., Inc., 96 F.Supp.2d 419 (D.N.J.2000) (same); Glukowsky v. Equity One, Inc., 180 N.J. 49, 848 A.2d 747 (2004) (same). This case does not present a direct conflict with an OTS regulation, nor does it present a direct conflict with the Parity Act because the per diem statutes do not prohibit alternative mortgage transactions. The California Court of Appeals has addressed whether California’s per diem statutes are preempted by the Parity Act because they “stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Black, 112 Cal.Rptr.2d at 456. That court rejected the argument that “the goal of the Parity Act is national uniformity in the regulation of state-chartered housing lenders with respect to alternative mortgage transactions” because “[gjiven the dearth of applicable federal regulations, the national uniform standard for state-chartered housing lenders would be ‘anything goes.’ That is hardly a uniform standard.” Id. at 457. It specifically rejected the argument that Congress’ purpose required preemption of the state laws at" }, { "docid": "13428667", "title": "", "text": "by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” 12 U.S.C. § 3803. “[T]he term ‘alternative mortgage transaction’ means a loan or credit sale secured by an interest in residential real property ... in which the interest rate or finance charge may be adjusted or renegotiated.” 12 U.S.C. § 3802(1)(A). The Ninth Circuit has stated that AMTPA does not provide for complete preemption, but only of those state law terms that conflict with AMTPA’s terms. See Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 864 (9th Cir.2003); Quicken Loans, Inc. v. Wood, 449 F.3d 944, 950 (9th Cir.Cal.2006). “The language of the statute provides that conflicting state laws governing ‘alternative mortgage transactions’ are preempted where those transactions comply with relevant OTS regulations. See 12 C.F.R. 560.35, 560.210, 226.19(b), 226.20(c). Alternative, conflicting, or more rigorous disclosure requirements would interfere with housing creditors’ ability to enter into alternative mortgage transactions. [The plaintiff] has not articulated a theory whereby defendants would be liable for violating Section 1916.7 of the California Civil Code in spite of the AMTPA. Nor has [the plaintiff] responded to defendants’ assertion that the California Civil Code is preempted. Consequently, this claim cannot survive defendants’ motion.” Hafiz v. Greenpoint Mortgage Funding, Inc., 652 F.Supp.2d 1039, 1047-48 (N.D.Cal.2009). Plaintiffs claim “The Defendants must notify Plaintiffs of any changes in the interest rate and monthly payment of loan. Considering that the amortized rate changes, so the Plaintiffs should be notified. Defendants failed to do so and violated Civil Code Section 1918.5-1921.1920.” Doc. 20, FAC, at 15:1-3. Cal. Civ.Code § 1918.5 does not set out regulations but only provides definitions for certain terms. Cal. Civ.Code § 1921 discusses disclosures before any loan is signed. These two sections do not appear to directly apply to Plaintiffs’ factual allegations. In contrast, Cal. Civ.Code § 1920 requires ongoing disclosures when the interest rate changes: “Before the due date of the first monthly installment following each change in the interest rate, notice shall be mailed to the borrower of the following: (A) The base index. (B) The most recently published" }, { "docid": "1746403", "title": "", "text": "currently licensed by the Bureau of Financial Institutions, Virginia State Corporation Commission, to conduct business in the Commonwealth of Virginia, and that also qualify as housing creditors under the Parity Act, 12 U.S.C. §§ 3801-06, and are thus subject to its provisions. The Parity Act was passed by Congress in 1982 in order “to eliminate the discriminatory impact ... [that federal] regulations have upon nonfederally chartered housing creditors and provide them with parity with federally chartered institutions. ...” 12 U.S.C. § 3801(b). The Parity Act afforded housing creditors the general authority to make, purchase, and enforce alternative mortgage transactions (“AMTs”). 12 U.S.C. § 3803. An AMT describes a residential-based loan or credit sale in which the lender may raise the interest rate, renegotiate the finance charge, or implicitly adjust the mortgage rate by allowing debt to mature faster than anticipated in the original amortization schedule. The Parity Act’s provision that all housing creditors have general authority to make, purchase, and enforce AMTs applies only to transactions made in accordance with regulations issued by the Director of the Office of Thrift Supervision (“OTS”) governing federal savings and loan associations. 12 U.S.C. § 3803(a)(3). The Director of the OTS has rulemaking authority pursuant to 12 U.S.C. §§ 1463(a) and 1464(a) to regulate federally chartered savings and loan organizations. The Director of the OTS has given savings and loan organizations federal rights to charge prepayment penalties without regard to state laws and has ruled that state laws regulating prepayment penalties are preempted. 12 C.F.R. §§ 560.2(a), (b)(5). The Parity Act includes a preemption provision which states that an AMT “may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, la%v, or regulation.” 12 U.S.C. § 3803(c) (emphasis added). Congress expressly allowed each state the opportunity to opt out of the Parity Act’s preemption provision between October 15, 1982 and October 15, 1985 by enacting, or adopting by referendum or constitutional amendment, a new law, stating explicitly and by its terms that the state did not want the Parity Act to preempt state laws regarding AMTs. 12 U.S.C" }, { "docid": "8517100", "title": "", "text": "issue because the state claims did “not seek to prohibit or impede the making of alternative mortgage transactions that comport with the applicable federal regulations,” and the claims do not “tread on the areas of federal regulation applicable to non-federally chartered housing creditors, namely, [those areas covered by regulations the OTS identified as applicable to non-federally chartered housing creditors].” Id. at 458. Black’s reasoning applies to this case as well. Here, California’s per diem statutes do not ‘tread on’ an area of federal regulation which the OTS has identified as applicable to non-federally chartered housing creditors. The per diem statutes also do not prohibit the making of alternative mortgage 5606 transactions. That leaves the issue of impeding the making of alternative mortgage transactions. This essentially returns the analysis to its original point of determining what is ‘necessary to achieve parity’ — i.e., what impedes the making of alternative mortgage transactions. California’s per diem statutes apply to mortgages on real property, and do not distinguish between alternative mortgages and fixed-rate, fixed-term mortgages. Cal. Civ. Code § 2948.5. The per diem statutes therefore do not impede the making of alternative mortgage transactions per se. These statutes do not apply to federally chartered housing creditors because Congress delegated “complete authority to regulate federal savings and loan associations” to the OTS. Wash. Mut. Bank v. Superior Court of L. A. County, 95 Cal.App.4th 606, 618, 115 Cal.Rptr.2d 765 (Cal.Ct.App.2002). Quicken argues that because the statutes do not apply to federally chartered creditors, they should not apply to nonfed-erally chartered creditors. However, Congress has not delegated similarly complete authority to the OTS to regulate nonfederally chartered housing creditors. 12 U.S.C. § 3802. The full purposes and objectives of Congress in enacting the Parity Act do not include delegating complete authority to regulate nonfederally chartered housing creditors to the OTS. Id. Section 3802(2) suggests that Congress did not intend to preempt all state laws relating to nonfederally chartered housing creditors. Indeed, § 3801 suggests that the Parity Act was intended to eliminate the discriminatory impact that regulations authorizing federally chartered depository institutions to engage in alternative" }, { "docid": "8517089", "title": "", "text": "must decide this substantive preemption issue.” Wells Fargo Bank N.A., 419 F.3d at 967. So much for “dicta,” and Quicken cannot distinguish Wells Fargo. Accordingly, the DIDMCA does not preempt the California per diem statutes here. As Quicken does not prevail on the merits, an injunction is not available. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). III. Parity Act Congress enacted the Parity Act after finding that “increasingly volatile and dynamic changes in interest rates ha[d] seriously impared [sic] the ability of housing creditors to provide consumers with fixed-term, fixed-rate credit secured by interests in real property.” 12 U.S.C. § 3801(a). Congress noted that the Office of Thrift Supervision (OTS), among other agencies, had “recognized the importance of alternative mortgage transactions and ha[d] adopted regulations authorizing federally chartered depository institutions to engage in alternative mortgage financing.” Id. Congress enacted the Parity Act “to eliminate the discriminatory impact that those regulations have upon nonfederally chartered housing creditors.” Id. § 3801(b). The Parity Act authorizes non-federally chartered housing creditors to “make, purchase, and enforce alternative mortgage transactions” when those transactions are made “in accordance with regulations governing alternative mortgage transactions as issued by the Director of the Office of Thrift Supervision.” Id. § 3803(a). In a section entitled “Preemption of State constitutions, laws, or regulations,” the Parity Act provides that “[a]n alternative mortgage transaction may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” Id. § 3803(c). Quicken asserts that the district court erred in holding that the Parity Act does not preempt the California per diem statutes as applied to alternative mortgage transactions. Quicken makes two arguments: (1) the per diem statutes are preempted because they conflict with an OTS regulation on adjustments and (2) the per diem statutes are expressly preempted because they destroy parity between federally and non-federally chartered lenders. The Supremacy Clause provides that federal laws “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any" }, { "docid": "8517096", "title": "", "text": "(AMTs), nor does the Act contain language mandating that federally and nonfederally chartered housing creditors must be treated identically in every respect under state law. See, e.g., Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 864 (9th Cir.2003) (“[T]he Parity Act d[oes] not completely preempt all California laws relating to al ternative mortgage transactions so as to create federal jurisdiction.”); Nat’l Home Equity Mortgage Ass’n v. Office of Thrift Supervision, 373 F.3d 1355, 1359 (D.C.Cir.2004) (“[T]he Parity Act does not unambiguously express an intent to preempt all state laws governing AMTs.”); Black v. Fin. Freedom Senior Funding Corp., 92 Cal.App.4th 917, 112 Cal.Rptr.2d 445, 456 (2001) (“[T]he preemption language of the Parity Act does not contain a clear manifestation of congressional intent to preempt all state laws concerning the terms and marketing of alternative mortgage transactions.”); 12 U.S.C. § 3802(2) (requiring housing creditors to be “licensed under applicable State law” and “subject to the applicable regulatory requirements and enforcement mechanisms provided by State law”). Because the Parity Act’s language does not explicitly preempt state statutes which regulate the commencement of interest, Quicken’s express preemption argument fails. C. Extent of Congressional Intent to Preempt Quicken’s claim, despite its identification as an express preemption argument, is better construed as an argument that the per diem statutes “ ‘stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Gade, 505 U.S. at 98, 112 S.Ct. 2374 (quoting Hines v. Davidowitz, 312 U.S. at 67, 61 S.Ct. 399). This is because only by looking to Congress’ purposes and objectives could one hope to identify what “preemption is necessary to achieve parity.” Quicken does not explain what it means by this phrase, although it does distinguish it from “absolute parity,” which it does not seek. By disclaiming the standard of “absolute parity,” Quicken implicitly concedes that the Parity Act does not preempt “all state restrictions on alternative mortgage transactions made by non-federally chartered creditors.” Quicken argues for preemption “to the extent required for ‘parity’— not ‘absolute parity.’ ” Without offering a formulation of parity for this" }, { "docid": "8517094", "title": "", "text": "of interest.” Likewise, the district court held that had Quicken complied with the per diem statutes in the first place, no adjustments would be necessary. Despite Quicken’s argument, there is no actual conflict between the California per diem statutes and the OTS regulation on adjustments. It is not physically impossible to charge no interest for more than one day before recording and to adjust payments only in accordance with the OTS regulation’s requirements. Because commencement of interest is not a form of interest adjustment, summary judgment for the Commissioner was appropriate. Although Quicken also contends that the Commissioner failed to meet his burden to show that there was no genuine issue of material fact regarding the Parity Act, this argument is again based on Quicken’s conflation of a payment adjustment with commencement of interest. This is a legal rather than factual argument. The Commissioner satisfied his burden to show there was no genuine issue of material fact. B. Express Preemption Quicken also argues that the Parity Act explicitly preempts the per diem statutes. Quicken invokes 12 U.S.C. §§ 3801(b) and 3803(c) to support this argument. Section 3801(b) states the purpose of the Parity Act: It is the purpose of this chapter to eliminate the discriminatory impact that those regulations [authorizing federally chartered depository institutions to engage in alternative mortgage financing] have upon nonfederally chartered housing creditors and provide them with parity with federally chartered institutions by authorizing all housing creditors to make, purchase, and enforce alternative mortgage transactions so long as the transactions are in conformity with the regulations issued by the Federal agencies. 12 U.S.C. § 3801(b). Section 3803(c) is entitled “Preemption of State constitutions, laws or regulations,” and provides that “[a]n alternative mortgage transaction may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” Quicken contends that because the per diem statutes do not apply to federally chartered housing creditors, the Parity Act expressly preempts them because “such preemption is necessary to achieve parity.” The Parity Act’s preemption clause does not preempt every state law regulating alternative mortgage transactions" }, { "docid": "16643852", "title": "", "text": "1982 “to revitalize the housing industry by strengthening the financial stability of home mortgage lending institutions and ensuring the availability of home mortgage loans.” Pub.L. No. 97-320, 96 Stat. 1469 (1982). Title VIII of that act, titled the “Alternative Mortgage Transaction Parity Act of 1982” (the “Parity Act”), was included to “authorize[ ] non-federally chartered housing creditors to offer alternative mortgages in accordance with the Federal regulations issued by the appropriate Federal regulatory agencies. Thus, those creditors will have parity with federally chartered institutions.” Sen. Conf. Rep. No. 97-641, at 94 (1982), reprinted in 1982 U.S.C.C.A.N. 3128, 3137; see also 12 U.S.C. § 3801(b). “Alternative mortgages” were understood to refer to those mortgages in which interest rates could be adjusted or renegotiated, in which the maturity date could be shortened, or which included other variations “not common to traditional fixed-rate, fixed-term transactions.” Parity Act, § 803(1), 12 U.S.C. § 3802(1). The practical effect of the statutory scheme is to permit a non-federally chartered housing creditor to make a loan either under state law, in which case the loan transaction remains subject to the full range of state regulations, or under federal law, in which case the loan transaction becomes subject to federal regulations governing similar loans by federally chartered lending institutions. Non-federally chartered housing creditors exercise this regulatory “option” by affirmatively complying with substantive federal regulations identified by the Office of Thrift Supervision. In return for exercising this option, the non-federally chartered housing creditor is promised parity with federally chartered lenders. See 12 U.S.C. § 3803. As the Senate Report relevant to the Act observes, the Parity Act “does not place non-federally chartered housing creditors under the supervision of the federal agencies, but instead merely enables them to follow a federal program as an alternative to state law.” S.Rep. No. 97-463, at 55 (1982). In April 1999, The Compliance Connection, the official newsletter of Virginia’s State Corporation Commission, announced its position that the Parity Act did not preempt Virginia statutory law limiting prepayment penalties. The newsletter explained that “Congress explicitly restricted the [Office of Thrift Supervision’s] authority to preemption of" }, { "docid": "8517097", "title": "", "text": "which regulate the commencement of interest, Quicken’s express preemption argument fails. C. Extent of Congressional Intent to Preempt Quicken’s claim, despite its identification as an express preemption argument, is better construed as an argument that the per diem statutes “ ‘stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Gade, 505 U.S. at 98, 112 S.Ct. 2374 (quoting Hines v. Davidowitz, 312 U.S. at 67, 61 S.Ct. 399). This is because only by looking to Congress’ purposes and objectives could one hope to identify what “preemption is necessary to achieve parity.” Quicken does not explain what it means by this phrase, although it does distinguish it from “absolute parity,” which it does not seek. By disclaiming the standard of “absolute parity,” Quicken implicitly concedes that the Parity Act does not preempt “all state restrictions on alternative mortgage transactions made by non-federally chartered creditors.” Quicken argues for preemption “to the extent required for ‘parity’— not ‘absolute parity.’ ” Without offering a formulation of parity for this court to adopt, Quicken argues that “the Parity Act’s preemptive scope is not limited to state restrictions that conflict with regulations identified by the OTS.” We are therefore asked to articulate the preemptive scope of the Parity Act. Notwithstanding §§ 3801(b) and 3803(c), Congress explicitly referred to the ongoing validity of state licensing requirements and “regulatory requirements and enforcement mechanisms provided by State law” governing housing creditors. 12 U.S.C. § 3802(2). Given this explicit reference, Congress did not intend to preempt all state regulation. Quicken does not seek this ‘absolute parity’ holding, and we do not adopt it. See also Black, 112 Cal.Rptr.2d at 457 (declining to read § 3801(b) to require absolute parity or complete preemption). We must therefore determine the scope of the clause: “notwithstanding any State constitution, law, or regulation.” 12 U.S.C. § 3803(c). Other courts asked to rule on the preemptive scope of the Parity Act have confronted direct conflicts between state laws and OTS regulations. See, e.g., Nat’l Home Equity Mortgage Ass’n v. Face, 239 F.3d 633 (4th Cir.2001) (state" }, { "docid": "8517099", "title": "", "text": "prepayment law); Shinn v. Encore Mortgage Servs., Inc., 96 F.Supp.2d 419 (D.N.J.2000) (same); Glukowsky v. Equity One, Inc., 180 N.J. 49, 848 A.2d 747 (2004) (same). This case does not present a direct conflict with an OTS regulation, nor does it present a direct conflict with the Parity Act because the per diem statutes do not prohibit alternative mortgage transactions. The California Court of Appeals has addressed whether California’s per diem statutes are preempted by the Parity Act because they “stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Black, 112 Cal.Rptr.2d at 456. That court rejected the argument that “the goal of the Parity Act is national uniformity in the regulation of state-chartered housing lenders with respect to alternative mortgage transactions” because “[gjiven the dearth of applicable federal regulations, the national uniform standard for state-chartered housing lenders would be ‘anything goes.’ That is hardly a uniform standard.” Id. at 457. It specifically rejected the argument that Congress’ purpose required preemption of the state laws at issue because the state claims did “not seek to prohibit or impede the making of alternative mortgage transactions that comport with the applicable federal regulations,” and the claims do not “tread on the areas of federal regulation applicable to non-federally chartered housing creditors, namely, [those areas covered by regulations the OTS identified as applicable to non-federally chartered housing creditors].” Id. at 458. Black’s reasoning applies to this case as well. Here, California’s per diem statutes do not ‘tread on’ an area of federal regulation which the OTS has identified as applicable to non-federally chartered housing creditors. The per diem statutes also do not prohibit the making of alternative mortgage 5606 transactions. That leaves the issue of impeding the making of alternative mortgage transactions. This essentially returns the analysis to its original point of determining what is ‘necessary to achieve parity’ — i.e., what impedes the making of alternative mortgage transactions. California’s per diem statutes apply to mortgages on real property, and do not distinguish between alternative mortgages and fixed-rate, fixed-term mortgages. Cal. Civ. Code §" }, { "docid": "13428666", "title": "", "text": "relied on to regulate what interest rates can be charged by the lender. “[Sjection 1916.7 applies only to mortgage loans made pursuant to it. Cal. Civ.Code § 1916.7(b). Plaintiff has not alleged facts showing that section 1916.7 applied to her loan.” Brittain v. IndyMac Bank, FSB, 2009 WL 2997394, *3, 2009 U.S. Dist. LEXIS 84863, *8 (N.D.Cal. Sept. 16, 2009); see also Gonzalez v. Alliance Bancorp, 2010 WL 1575963, *6, 2010 U.S. Dist. LEXIS 47943, *17 (N.D.Cal. Apr. 19, 2010). Similarly in this case, Plaintiffs have not alleged facts that suggest Cal. Civ.Code § 1916.7 applies. In fact, the allegation that the interest rates charged are not in accord with the terms set out in Cal. Civ.Code § 1916.7 suggest that the refinance of the Property is a loan that is not covered. Greenpoint also points out that the disclosures required by Cal. Civ.Code § 1916.7 appear to be preempted in many circumstances by the federal Alternative Mortgage Transactions Parity Act of 1982 (“AMTPA”) which provides in part “An alternative mortgage transaction may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” 12 U.S.C. § 3803. “[T]he term ‘alternative mortgage transaction’ means a loan or credit sale secured by an interest in residential real property ... in which the interest rate or finance charge may be adjusted or renegotiated.” 12 U.S.C. § 3802(1)(A). The Ninth Circuit has stated that AMTPA does not provide for complete preemption, but only of those state law terms that conflict with AMTPA’s terms. See Ansley v. Ameriquest Mortg. Co., 340 F.3d 858, 864 (9th Cir.2003); Quicken Loans, Inc. v. Wood, 449 F.3d 944, 950 (9th Cir.Cal.2006). “The language of the statute provides that conflicting state laws governing ‘alternative mortgage transactions’ are preempted where those transactions comply with relevant OTS regulations. See 12 C.F.R. 560.35, 560.210, 226.19(b), 226.20(c). Alternative, conflicting, or more rigorous disclosure requirements would interfere with housing creditors’ ability to enter into alternative mortgage transactions. [The plaintiff] has not articulated a theory whereby defendants would be liable for violating Section 1916.7 of the California Civil" }, { "docid": "16557250", "title": "", "text": "state regulation of alternative mortgage transactions involving state-chartered housing creditors. Id. at 455. Black concluded, however, that a more reasonable interpretation of the preemption language was that the phrase “any state constitution, law, or regulation” can be interpreted as implicitly limited to those that prohibit or impede alternative mortgage transactions or that conflict with federal regulations deemed applicable to non-federally chartered housing creditors, i.e., the regulations that the transaction must be made “in accordance with.” This interpretation would leave broad room for state regulation because there are only four federal regulations with which the transactions of housing creditors must comply. Id. The Black court found that other provisions of the Parity Act supported the above interpretation of the Act’s preemption language. For example, the Parity Act requires housing creditors to be “licensed under applicable State law” and “subject to the applicable regulatory requirements and enforcement mechanisms provided by State law.” 12 U.S.C. § 3802(2). Black noted further: When Congress enacted the Parity Act, it was surely aware that such forms of state regulation then existed or, at least, could come into existence in the future because it had no control over the changes and developments that states could subsequently make to their regulatory schemes. Given the breadth accorded the states in regulating “housing creditors” in 12 United States Code section 3802, the preemption language of 12 U.S.C. section 3803(c) can certainly be interpreted as not extending to state laws that concern aspects of those transactions other than those addressed by the four applicable federal regulations. 112 Cal.Rptr.2d at 456. Ameriquest argues that we should ignore Black’s conclusion that the Parity Act does not preempt state law and instead follow the holdings of National Home Equity Mortgage Ass’n v. Face, 239 F.3d 633 (4th Cir.), cert. denied, 534 U.S. 823, 122 S.Ct. 58, 151 L.Ed.2d 26 (2001), and Shinn v. Encore Mortgage Services, Inc., 96 F.Supp.2d 419 (D.N.J.2000). Both courts held that the Parity Act preempted specific state laws restricting prepayment fees, but neither expressly found complete preemption necessary for federal question jurisdiction. In Face, a trade association initiated the case" }, { "docid": "8517101", "title": "", "text": "2948.5. The per diem statutes therefore do not impede the making of alternative mortgage transactions per se. These statutes do not apply to federally chartered housing creditors because Congress delegated “complete authority to regulate federal savings and loan associations” to the OTS. Wash. Mut. Bank v. Superior Court of L. A. County, 95 Cal.App.4th 606, 618, 115 Cal.Rptr.2d 765 (Cal.Ct.App.2002). Quicken argues that because the statutes do not apply to federally chartered creditors, they should not apply to nonfed-erally chartered creditors. However, Congress has not delegated similarly complete authority to the OTS to regulate nonfederally chartered housing creditors. 12 U.S.C. § 3802. The full purposes and objectives of Congress in enacting the Parity Act do not include delegating complete authority to regulate nonfederally chartered housing creditors to the OTS. Id. Section 3802(2) suggests that Congress did not intend to preempt all state laws relating to nonfederally chartered housing creditors. Indeed, § 3801 suggests that the Parity Act was intended to eliminate the discriminatory impact that regulations authorizing federally chartered depository institutions to engage in alternative mortgage financing have upon nonfederally chartered housing creditors. Section 3801 further states that it is the purpose of the Parity Act to provide nonfederally chartered housing creditors with parity by authorizing all housing creditors to make, purchase, and enforce alternative mortgage transactions so long as the transactions are in conformity with OTS regulations. The per diem statutes do not apply exclusively to alternative mortgages, but rather are statutes of general applicability. They do not touch upon the areas identified by the OTS as essential and intrinsic to the ability to engage in alternative mortgage transactions. The per diem statutes do not restrict a housing creditor’s ability to make an alternative mortgage transaction, any more than does any statute which applies to nonfederally chartered housing creditors but not to federally chartered housing creditors. Because the California per diem statutes do not conflict with OTS regulations applicable to nonfederally chartered housing creditors; do not prohibit making, purchasing, or enforcing alternative mortgage transactions; and do not inhibit the making, purchasing, or enforcing of alternative mortgage transactions per se," }, { "docid": "8517102", "title": "", "text": "mortgage financing have upon nonfederally chartered housing creditors. Section 3801 further states that it is the purpose of the Parity Act to provide nonfederally chartered housing creditors with parity by authorizing all housing creditors to make, purchase, and enforce alternative mortgage transactions so long as the transactions are in conformity with OTS regulations. The per diem statutes do not apply exclusively to alternative mortgages, but rather are statutes of general applicability. They do not touch upon the areas identified by the OTS as essential and intrinsic to the ability to engage in alternative mortgage transactions. The per diem statutes do not restrict a housing creditor’s ability to make an alternative mortgage transaction, any more than does any statute which applies to nonfederally chartered housing creditors but not to federally chartered housing creditors. Because the California per diem statutes do not conflict with OTS regulations applicable to nonfederally chartered housing creditors; do not prohibit making, purchasing, or enforcing alternative mortgage transactions; and do not inhibit the making, purchasing, or enforcing of alternative mortgage transactions per se, they are not preempted by the Parity Act. IY. Takings Clause Quicken argues that the district court erred when it dismissed Quicken’s takings claim as unripe. Quicken asserts that the district court applied the wrong ripeness test. A. As-Applied Takings Claim If Quicken is pursuing an as-applied takings claim, it must establish that (1) “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue,” and (2) Quicken has sought “compensation through the procedures the State has provided for doing so.” Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). The district court correctly held that Quicken did not establish either of these requirements. There is no indication in the record that Quicken sought compensation through any California procedures. However, there are some situations in ' which a plaintiff need not first seek compensation from the state: [A] plaintiff may be excused from this requirement if he demonstrates" }, { "docid": "8517088", "title": "", "text": "partial summary judgment on the DIDMCA claim, dismissed Quicken’s takings claim for lack of ripeness, and granted the Commissioner’s motion for summary judgment on the Parity Act claim. Quicken assigns error to the resolutions of the Parity Act and Takings Clause claims, and to the denial of a permanent injunction barring enforcement of the per diem statutes to the extent they are preempted by the DIDMCA. The Commissioner cross-appeals, assigning error to the resolution of the DIDMCA claim. II. DIDMCA [1] Wells Fargo held that California’s per diem statutes are not preempted by the DIDMCA. 419 F.3d at 969. Quicken attempts to argue that Wells Fargo should not be followed because it was decided by a three-judge panel rather than by the court sitting en banc, and that Wells Fargo’s DIDMCA discussion is dicta. In general, “one three-judge panel of this court cannot reconsider or overrule the decision of a prior panel.” United States v. Gay, 967 F.2d 322, 327 (9th Cir.1992). Furthermore, ■ the Wells Fargo DIDMCA discussion begins with the statement that “we must decide this substantive preemption issue.” Wells Fargo Bank N.A., 419 F.3d at 967. So much for “dicta,” and Quicken cannot distinguish Wells Fargo. Accordingly, the DIDMCA does not preempt the California per diem statutes here. As Quicken does not prevail on the merits, an injunction is not available. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). III. Parity Act Congress enacted the Parity Act after finding that “increasingly volatile and dynamic changes in interest rates ha[d] seriously impared [sic] the ability of housing creditors to provide consumers with fixed-term, fixed-rate credit secured by interests in real property.” 12 U.S.C. § 3801(a). Congress noted that the Office of Thrift Supervision (OTS), among other agencies, had “recognized the importance of alternative mortgage transactions and ha[d] adopted regulations authorizing federally chartered depository institutions to engage in alternative mortgage financing.” Id. Congress enacted the Parity Act “to eliminate the discriminatory impact that those regulations have upon nonfederally chartered housing creditors.” Id. § 3801(b). The" }, { "docid": "16643863", "title": "", "text": "of this authority and all regulations not so identified are deemed inappropriate and inapplicable. 12 C.F.R. § 560.220 (emphasis added). Thus, the Parity Act and the regulations, to which it explicitly refers, provide that when a non-federally chartered housing creditor elects to be governed by federal law and complies with that law, it may charge a contractually specified prepayment fee as authorized by federal law, despite the fact that Virginia law provides otherwise. Any other rule would contradict the explicit language of 12 U.S.C. § 3803(c) which provides that “[a]n alternative mortgage transaction may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” It would also deny the non-federally chartered housing creditor parity with federal institutions when entering into alternative mortgage transactions. Virginia argues that the definition of an alternative mortgage transaction in 12 U.S.C. § 3802(1) is limited to transactions with terms that are “not common to traditional fixed-rate, fixed-term transactions” and therefore does not include transactions involving prepayment penalties because such penalties are common to fixed-rate loans. That clause, however, refers to the essential nature of an alternative mortgage as including variable rates of interest or amortization. It does not specify the terms that such a transaction may or may not include or what regulations may apply. Most importantly, it does not limit the scope of the preemptive force of § 3803(c). That scope is defined in § 3803, which provides that non-federally chartered housing creditors “may make ... alternative mortgage transactions” as defined in § 3802(1), and that if they do, they must be made “in accordance with regulations governing alternative mortgage transactions as issued by the Director of the Office of Thrift Supervision for federally chartered savings and loan associations.” Id. § 3803(a)(3). And, defining the scope of preemption, subsection (c) provides that a loan made within the scope of such regulations may be made despite a conflicting state provision. It is undisputed that the regulations for making alternative mortgage transactions not only regulate the prepayment of interest, but also explicitly authorize the collection of prepayment penalties" }, { "docid": "16643867", "title": "", "text": "by the Home Owners’ Loan Act (“HOLA”), 12 U.S.C. § 1461 et seq., and it was adopted pursuant to HOLA as directed by § 807(b) of the Parity Act, which instructs non-federally chartered institutions how to take advantage of the Parity Act. The regulations referred to in § 3803(a) were indeed adopted originally by the Federal Home Loan Bank Board and later by the OTS and other implicated agencies pursuant to their authorizing statutes. In the case of the OTS, the regulations were adopted explicitly under HOLA, as authorized pursuant to 12 U.S.C. §§ 1463(a)(2) and 1464(a); see also 12 C.F.R. §§ 560.1, 560.2 (generally drawing on 12 U.S.C. § 1462 et seq. for authority to adopt regulations involving alternative mortgage transactions). Thus, we reject Virginia’s argument challenging 12 C.F.R. § 560.220. In sum, we hold that non-federally chartered housing creditors in Virginia — as they are defined in 12 U.S.C. § 3802(2)— may elect to have their alternative mortgage transactions governed by the federal law applicable to federally chartered housing creditors engaging in similar transactions by complying with that law, and when they do, that law, which includes 12 C.F.R. § 560.34 (regulating prepayments and authorizing a prepayment fee), preempts Virginia Code §§ 6.1-330.83 and 6.1-330.85, which limits the imposition of prepayment penalties. This conclusion is required by 12 U.S.C. § 3803 and is clearly consistent with the raison d’etre of the Parity Act — giving State — chartered lending institutions parity with federally chartered lending institutions. See 12 U.S.C. § 3801(b). For the foregoing reasons, the judgment of the district court is AFFIRMED. The Office of Thrift Supervision has used the rule-making authority conferred on it by §§ 4(a) and 5(a) of the Home Owners Loan Act (“HOLA”), 12 U.S.C. §§ 1463(a)(2), 1464(a), to permit federally chartered thrifts to charge prepayment penalties as specified in the lending documents, regardless of whether the loan is a traditional fixed-interest loan or an alternative mortgage transaction. See 12 C.F.R. §§ 560.2(b)(5), 560.34. Virginia does not contend that federally chartered institutions must comply with state limitations on prepayment penalties." }, { "docid": "16643862", "title": "", "text": "if the loan contract provides that, after loan closing and after each interest rate adjustment, the interest rate remains fixed for a period of at least five years. Home Loan Amendments, 47 Fed. reg. 36,612, 36,615 (Aug. 23, 1982) (summary of contents) (emphasis added). This explanation provided by the Board in connection with its 1982-83 regulations clearly places the regulation of prepayment penalties within the regulation of “alternative mortgage instruments.” In its current federal regulation, OTS continues to regulate prepayment penalties as part of the alternative mortgage transaction regulations. Section 560.220, entitled “Alternative Mortgage Parity Act,” provides that non-federally chartered housing creditors may make alternative mortgage transactions as defined by [12 U.S.C. § 3803] and further defined and described by applicable regulations identified in this section, notwithstanding any state constitution, law, or regulation. In accordance with section 807(b) of Public Law 97-320,12 U.S.C. § 3801 note, §§ 560.33 [Late charges], 560.34, [Prepayments], 560.35 [adjustments to home loans], and 560.210 [Disclosures for variable rate transactions] of this part are identified as appropriate and applicable to exercise of this authority and all regulations not so identified are deemed inappropriate and inapplicable. 12 C.F.R. § 560.220 (emphasis added). Thus, the Parity Act and the regulations, to which it explicitly refers, provide that when a non-federally chartered housing creditor elects to be governed by federal law and complies with that law, it may charge a contractually specified prepayment fee as authorized by federal law, despite the fact that Virginia law provides otherwise. Any other rule would contradict the explicit language of 12 U.S.C. § 3803(c) which provides that “[a]n alternative mortgage transaction may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” It would also deny the non-federally chartered housing creditor parity with federal institutions when entering into alternative mortgage transactions. Virginia argues that the definition of an alternative mortgage transaction in 12 U.S.C. § 3802(1) is limited to transactions with terms that are “not common to traditional fixed-rate, fixed-term transactions” and therefore does not include transactions involving prepayment penalties because such penalties are common" }, { "docid": "8517095", "title": "", "text": "12 U.S.C. §§ 3801(b) and 3803(c) to support this argument. Section 3801(b) states the purpose of the Parity Act: It is the purpose of this chapter to eliminate the discriminatory impact that those regulations [authorizing federally chartered depository institutions to engage in alternative mortgage financing] have upon nonfederally chartered housing creditors and provide them with parity with federally chartered institutions by authorizing all housing creditors to make, purchase, and enforce alternative mortgage transactions so long as the transactions are in conformity with the regulations issued by the Federal agencies. 12 U.S.C. § 3801(b). Section 3803(c) is entitled “Preemption of State constitutions, laws or regulations,” and provides that “[a]n alternative mortgage transaction may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” Quicken contends that because the per diem statutes do not apply to federally chartered housing creditors, the Parity Act expressly preempts them because “such preemption is necessary to achieve parity.” The Parity Act’s preemption clause does not preempt every state law regulating alternative mortgage transactions (AMTs), nor does the Act contain language mandating that federally and nonfederally chartered housing creditors must be treated identically in every respect under state law. See, e.g., Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 864 (9th Cir.2003) (“[T]he Parity Act d[oes] not completely preempt all California laws relating to al ternative mortgage transactions so as to create federal jurisdiction.”); Nat’l Home Equity Mortgage Ass’n v. Office of Thrift Supervision, 373 F.3d 1355, 1359 (D.C.Cir.2004) (“[T]he Parity Act does not unambiguously express an intent to preempt all state laws governing AMTs.”); Black v. Fin. Freedom Senior Funding Corp., 92 Cal.App.4th 917, 112 Cal.Rptr.2d 445, 456 (2001) (“[T]he preemption language of the Parity Act does not contain a clear manifestation of congressional intent to preempt all state laws concerning the terms and marketing of alternative mortgage transactions.”); 12 U.S.C. § 3802(2) (requiring housing creditors to be “licensed under applicable State law” and “subject to the applicable regulatory requirements and enforcement mechanisms provided by State law”). Because the Parity Act’s language does not explicitly preempt state statutes" }, { "docid": "8517090", "title": "", "text": "Parity Act authorizes non-federally chartered housing creditors to “make, purchase, and enforce alternative mortgage transactions” when those transactions are made “in accordance with regulations governing alternative mortgage transactions as issued by the Director of the Office of Thrift Supervision.” Id. § 3803(a). In a section entitled “Preemption of State constitutions, laws, or regulations,” the Parity Act provides that “[a]n alternative mortgage transaction may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” Id. § 3803(c). Quicken asserts that the district court erred in holding that the Parity Act does not preempt the California per diem statutes as applied to alternative mortgage transactions. Quicken makes two arguments: (1) the per diem statutes are preempted because they conflict with an OTS regulation on adjustments and (2) the per diem statutes are expressly preempted because they destroy parity between federally and non-federally chartered lenders. The Supremacy Clause provides that federal laws “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. Preemption analysis must “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). “The purpose of Congress is the ultimate touchstone of preemption analysis.” Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotation marks omitted). State law is preempted if Congress’ intent to preempt is (1) explicit in the federal statute’s language or (2) implicit in its structure and purpose; (3) if state law actually conflicts with federal law; or (4) if federal law so thoroughly occupies the legislative field that Congress left no room for state regulation. Id. Conflict preemption exists “where ‘compliance with both federal and state regulations is a physical impossibility,’ or where state law ‘stands as an obstacle to the accomplishment and execution of" } ]

[ { "docid": "22594734", "title": "", "text": "and contacts to facilitate the sale of drugs, and that he had “acquiesced in that agreement.” 182 F.3d at 422. Therefore, a reasonable jury could have found that Deitz’s methamphetamine and marijuana sales occurred in furtherance of the conspiracy. 3. Deitz’s drug sales were not merely buyer-seller transactions Deitz also argues that the testimony of Bloor, Dilts, and Solgot regarding his various drug transactions during the 1990s described isolated buyer-seller transactions that did not further the underlying conspiracy. The record tells a different story. “Generally, a buyer-seller relationship alone is insufficient to tie a buyer to a conspiracy because ‘mere sales do not prove the existence of the agreement that must exist for there to be a conspiracy.’” United States v. Cole, 59 Fed.Appx. 696, 699 (6th Cir.2003). “Nonetheless, [we] have often upheld conspiracy convictions where there was additional evidence, beyond the mere purchase or sale, from which the knowledge of the conspiracy could be inferred.” Id.; see also United States v. Nesbitt, 90 F.3d 164, 167 (6th Cir.1996) (concluding that evidence of advanced planning and multiple transactions involving large quantities of drugs may show that the defendant was involved in the conspiracy and was not merely engaged in a buyer-seller relationship); United States v. Anderson, 89 F.3d 1306, 1310 (6th Cir.1996) (holding that repeat purchases, purchases of large quantities, or other enduring arrangements, are sufficient to support a conspiracy conviction). We have cited with approval the Seventh Circuit’s construct, which considers a list of factors to determine whether a drug sale is part of a larger drug conspiracy. Cole, 59 Fed.Appx. at 700 (citing United States v. Rivera, 273 F.3d 751, 755 (7th Cir.2001)). These factors include: (1) the length of the relationship; (2) the established method of payment; (3) the extent to which transactions are standardized; and (4) the level of mutual trust between the buyer and the seller. Id. (citing Rivera, 273 F.3d at 755). A reasonable jury could infer from the testimony of Bloor and Solgot that Deitz’s drug transactions during the 1990s were part of the OMC narcotics conspiracy. The evidence shows that Deitz routinely" } ]

[ { "docid": "11883313", "title": "", "text": "have found the essential elements of the crime beyond a reasonable doubt.’ ” Martin, 520 F.3d at 660 (quoting United States v. Pearce, 912 F.2d 159, 161 (6th Cir.1990) (quoting in turn Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979))). To establish a violation of 21 U.S.C. § 846, “the government must prove, beyond a reasonable doubt, ‘(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.’ ” United States v. Caver, 470 F.3d 220, 232 (6th Cir.2006) (quoting United States v. Gibbs, 182 F.3d 408, 420 (6th Cir.1999)). Drug conspiracies “often assume[] a vertical pattern of distribution, where each successive distributor sells a lower volume to any particular customer.... [A]n agreement to supply drugs to a given area can be inferred from the interdependence of the enterprise.” Id. at 233. “In a drug distribution ‘chain’ conspiracy, it is enough to show that each member of the conspiracy realized that he was participating in a joint venture, even if he did not know the identities of every other member, or was not involved in all the activities in furtherance of the conspiracy.” United States v. Martinez, 430 F.3d 317, 332-33 (6th Cir.2005). “ ‘[E]vidence of repeat purchases provides evidence of more than a mere buyer-seller relationship,’ and the quantity of drugs may also support an inference of conspiracy.” Id. at 333 (quoting United States v. Brown, 332 F.3d 363, 373 (6th Cir.2003)). Also, the “trust involved” in delivering drug quantities on credit “suggests more than a buyer-seller relationship.” United States v. Nesbitt, 90 F.3d 164, 167 (6th Cir.1996). The evidence was sufficient to show that Robinson conspired with Juan Valentin and others to distribute cocaine. Valentin testified that he and Robinson shared a “business relationship” and that they worked together to sell cocaine. Robinson purchased drugs from Valentin once or twice a week, sometimes on credit, over a period of several years. On at least one occasion, Robinson accompanied Valentin to a source city to pick up “a couple kilos” of cocaine. Robinson" }, { "docid": "22853426", "title": "", "text": "buyer/seller relationships, not that there was a conspiracy. He concedes that there was sufficient evidence that he and other defendants trafficked in crack cocaine, but he asserts that the traffickers were acting independently rather than in concert. He points to the testimony of alleged co-conspirators that each controlled what he sold, where he sold, and the prices he charged, and that no profits were shared between them. But the evidence amply supports a finding that Keyon Mitchell entered into an agreement with Jeffrey and Robinson to purchase crack cocaine together for distribution in Paris. On numerous occasions, the three men agreed to drive to Dallas together, they agreed to have Robinson conduct the transaction with “Bowleg” on behalf of all three of them, and they agreed on a method of transporting the drugs back to Paris for distribution. And each trip involved the purchase of at least twelve ounces of crack cocaine in total (four ounces each), which is significantly greater than 50 grams. Even in the absence of any formal agreement to violate the narcotics laws, the jury certainly could have inferred such an agreement from the individuals’ concert of action. We therefore conclude that there was sufficient evidence from which a jury could have found beyond a reasonable doubt that Keyon Mitchell conspired to possess with intent to distribute more than fifty grams of crack cocaine. III. MATERIAL VARIANCE A. Standard of Review A material variance occurs “when the proof at trial depicts a scenario that differs materially from the scenario charged in the indictment but does not modify an essential element of the charged offense.” United States v. Delgado, 401 F.3d 290, 295 (5th Cir.2005). We determine whether a variance occurred by comparing the evidence presented at trial with the language of the indictment. See United States v. Medina, 161 F.3d 867, 872 (5th Cir.1998). If a variance did occur, we reverse only if the variance prejudiced the defendant’s substantial rights. See Delgado, 401 F.3d at 295; Medina, 161 F.3d at 872. In determining whether a material variance resulted in prejudice, we employ a harmless-error analysis. United" }, { "docid": "23184915", "title": "", "text": "shown by either direct or circumstantial evidence. United States v. Avery, 128 F.3d 966, 971 (6th Cir.1997). Gardner challenges each element of the conspiracy charge on appeal. Regarding the first element, the government need not prove the existence of a formal or express agreement among the conspirators. Id. at 970. Even a tacit or mutual understanding among the conspirators is sufficient. Id. at 970-71. Yet, an agreement must be shown beyond a reasonable doubt. Id. at 971. There can be no question in this case that the government put forward sufficient evidence of the existence of an agreement. Mike Thompson, the undercover officer posing as a drug supplier, coordinated his dealings with McMillion through Collins, an informant. McMillion’s testimony provides substantial support for the existence of the conspiracy, including the agreement initially to purchase the five kilograms of cocaine. McMillion also testified to the later steps of the plan, including the search for the truck and the trip to the motel. McMillion’s testimony is corroborated by several items of physical evidence. First, the duct tape and gloves, which McMillion said Gardner asked for during the search for the truck, were found in the car in which Gardner and Hassell were arrested. Second, the guns Gardner allegedly brought to the vehicle were also found in the car. Third, it is clear from the conspirators’ arrival at the motel that they had a common plan: to follow the instructions of Collins (the informant) who told them precisely where to go to accomplish the drug purchase. There was sufficient evidence to show an agreement existed. [10-13] Regarding the second and third elements, the government must show the willful membership of the defendant in the conspiracy, but the government need not prove that the defendant committed an overt act in furtherance of the conspiracy. Layne, 192 F.3d at 567. Further, while the connection between the defendant and the conspiracy need only be slight, mere association with conspirators is not enough to establish participation. United States v. Pearce, 912 F.2d 159, 162 (6th Cir.1990). Finally, knowledge of and participation in the common purpose and plan" }, { "docid": "19462240", "title": "", "text": "agreement.\" United States v. Johnson , 592 F.3d 749, 754 (7th Cir. 2010). To distinguish a buyer-seller agreement from a conspiracy, \"the government must offer evidence establishing an agreement to distribute drugs that is distinct from evidence of the agreement to complete the underlying drug deals.\" Id. at 755. \"[S]ales of large quantities of drugs, repeated and/or standardized transactions, and a prolonged relationship between the parties\" are inherent characteristics indicative of a conspiracy rather than a buyer-seller relationship. United States v. Villasenor , 664 F.3d 673, 680 (7th Cir. 2011) (quoting Johnson , 592 F.3d at 754 ). Other characteristics we have found indicative of establishing a conspiracy include \"sales on credit, an agreement to look for customers, commission payments, evidence that one party provided advice for the other's business, or an agreement to warn of future threats to each other's business from competitors or law enforcement.\" Id. The evidence was sufficient for a reasonable jury to find a conspiracy existed between Masias and Maldonado, rather than a mere buyer-seller relationship. The Defendants correctly assert that, \"[r]epeat sales, without more simply do not place the participants' actions into the realm of conspiracy.\" United States v. Rivera , 273 F.3d 751, 755 (7th Cir. 2001). However, \"[a] reasonable jury can infer a conspiracy from evidence of ... multiple, large-quantity purchases, on credit.\" United States v. Cruse , 805 F.3d 795, 811-12 (7th Cir. 2015) (quoting United States v. Jones , 763 F.3d 777, 807 (7th Cir. 2014) ) (internal quotation marks omitted). The Defendants concede that they had a prolonged relationship. During this relationship, Masias regularly sold large amounts of cocaine to Maldonado, who subsequently rerocked the cocaine for resale. Additionally, the evidence showed that on numerous occasions Masias fronted large quantities of cocaine to Maldonado. The evidence also showed that the Defendants occasionally worked cooperatively. One such occasion occurred on January 11, 2010, when Masias negotiated and coordinated a deal while Maldonado received the delivery. The two agreed to check the quality of the cocaine together. On this same day, Maldonado agreed to buy cutting agent for Masias. Another instance" }, { "docid": "11883314", "title": "", "text": "if he did not know the identities of every other member, or was not involved in all the activities in furtherance of the conspiracy.” United States v. Martinez, 430 F.3d 317, 332-33 (6th Cir.2005). “ ‘[E]vidence of repeat purchases provides evidence of more than a mere buyer-seller relationship,’ and the quantity of drugs may also support an inference of conspiracy.” Id. at 333 (quoting United States v. Brown, 332 F.3d 363, 373 (6th Cir.2003)). Also, the “trust involved” in delivering drug quantities on credit “suggests more than a buyer-seller relationship.” United States v. Nesbitt, 90 F.3d 164, 167 (6th Cir.1996). The evidence was sufficient to show that Robinson conspired with Juan Valentin and others to distribute cocaine. Valentin testified that he and Robinson shared a “business relationship” and that they worked together to sell cocaine. Robinson purchased drugs from Valentin once or twice a week, sometimes on credit, over a period of several years. On at least one occasion, Robinson accompanied Valentin to a source city to pick up “a couple kilos” of cocaine. Robinson helped collect money other buyers owed Valentin. He warned Valentin about police activity. He conferred with Valentin about how to recover drug proceeds from an impounded car. Robinson introduced Troy Allison to Valentin, and Allison became one of Valentin’s “good customer^].” From this evidence a rational trier of fact could find that there was an agreement to violate drug laws, that Robinson knowingly and intentionally joined the conspiracy, and that Robinson participated in the conspiracy. D. Variance Robinson argues that there was a prejudicial variance between the in dictment and the proof at trial because the indictment alleged one large conspiracy while the evidence demonstrated several smaller conspiracies. “The court of appeals reviews the question of whether a variance has occurred de novo.” Caver, 470 F.3d at 235. “Within the context of a conspiracy, a variance constitutes reversible error only if a defendant demonstrates that he was prejudiced by the variance and that the ‘indictment allege[d] one conspiracy, but the evidence can reasonably be construed only as supporting a finding of multiple conspiracies.’ ” Id." }, { "docid": "22249839", "title": "", "text": "the conspiracy. His reliance on Thomas is misplaced because there the court found plain error in the refusal to give a mere buyer-seller instruction in the face of evidence that the defendant had specialized in selling drugs on a spot-market basis. In this case, the jury was specifically instructed that evidence of a mere buyer-seller relationship would not be enough to establish a conspiracy. Next, Harris points to evidence that three of the testifying coconspirators had only one or two drug transactions with him. It was not necessary to prove that Harris had ongoing dealings with all of the conspirators. In a drug distribution “chain” conspiracy, it is enough to show that each member of the conspiracy real ized that he was participating in a joint venture, even if he did not know the identities of every other member, or was not involved in all the activities in furtherance of the conspiracy. Maliszewski, 161 F.3d at 1014; United States v. Odom, 13 F.3d 949, 959 (6th Cir.1994). As outlined above, there was evidence that Harris bought directly from Castile a handful of times, provided the introduction between Thomas and Turner that lead to the regular purchase of 1/8 kilogram quantities of cocaine, and had traveled with Turner to buy similar quantities of cocaine from Thomas. There was also evidence that Harris bought 9- and 18-ounce quantities of cocaine from Philon for a full year in 1998 and 1999. Harris, in turn, sold a total of about 10 ounces of cocaine to Turner in several transactions during the summer of 1999, some of which were then sold to a confidential informant. The fact that Phi-lon said he did not know or care to know to whom Harris sold the cocaine did not preclude the jury from finding that they both knew they were participating in a joint venture. “[E]videnee of repeat purchases provides evidence of more than a mere buyer-seller relationship,” and the quantity of drugs may also support an inference of conspiracy. United States v. Brown, 332 F.3d 363, 373 (6th Cir.2003). We have no difficulty concluding that there was" }, { "docid": "22257632", "title": "", "text": "transaction. This evidence is sufficient for a jury to conclude that Defendant Abdullah had voluntarily agreed to enter into a conspiracy to possess crack cocaine with the intent to distribute. See id. 3. Defendant Caver The evidence is also sufficient to conclude that Defendant Caver knowingly agreed to become a member of the conspiracy. Witnesses at trial likewise testified about repeated, high-volume sales and purchases with Defendant Caver. Hall sold Defendant Caver one-ounce quantities numerous times during the relevant period. Wilson, Ralph Jones, Jermaine Jones, Walker, MeCristall, and Wylie also testified that they engaged in multiple transactions with Defendant Caver. Defendant Caver actively cooperated with Ralph Jones in efforts to evade the police, both by paying Jones to act as a “jump boy” and by photographing the neighborhood. These efforts were clearly designed to further the distribution of crack cocaine. In sum, the evidence at trial was sufficient to allow a jury to infer that Defendant Caver had knowingly participated in a conspiracy, and was not just a mere buyer or seller. See id.; Cf. Henley, 360 F.3d at 514 (trust between drug dealers involved in extending drugs on credit supports the inference of a conspiracy). B. VARIANCE On appeal, Defendants argue that a variance existed between the proof offered at trial and the allegations in the indictment because, according to Defendants, the indictment alleged only a single conspiracy and the evidence at trial demonstrated, at most, multiple conspiracies. This court requires that the issue of variance be raised at trial. United States v. Wilson, 168 F.3d 916, 923 (6th Cir.1999). Because Defendants Cloud and Abdullah did not raise the issue of variance at trial, we review their claims only for plain error. Id. Defendant Caver did, however, raise the issue before the district court. We will therefore reverse his conviction if a variance occurred and that variance affected his substantial rights. United States v. Blackwell, 459 F.3d 739, 762 (6th Cir.2006) (citing United States v. Solorio, 337 F.3d 580, 589 (6th Cir.2003)). The court of appeals reviews the question of whether a variance has occurred de novo. Solorio, 337" }, { "docid": "22594645", "title": "", "text": "States v. Gibbs, 182 F.3d 408, 420 (6th Cir.), cert. denied, 528 U.S. 1051, 120 S.Ct. 592, 145 L.Ed.2d 492 (1999). “A defendant’s guilty knowledge and voluntary participation may be inferred from surrounding circumstances,” including a close relationship between alleged conspirators, but participation requires more than “mere association with conspirators.” United States v. Brown, 332 F.3d 363, 372-73 (6th Cir.2003) (internal quotation marks omitted). A buyer-seller relationship with others is not enough, but evidence of a conspiracy or evidence linking a particular defendant to a conspiracy may be provided by: repeated sales, Brown, 332 F.3d at 373 (holding regular arrangement to purchase large amounts is sufficient evidence of conspiracy); “further evidence indicating knowledge of and participation in the conspiracy,” Gibbs, 182 F.3d at 422; or “evidence of a large quantity of drugs,” United States v. Caver, 470 F.3d 220, 233 (6th Cir.2006), cert. denied, 549 U.S. 1326, 127 S.Ct. 1921, 167 L.Ed.2d 574 (2007), 549 U.S. 1353, 127 S.Ct. 2064, 167 L.Ed.2d 789 (2007). “[O]vert acts are not needed to prove a conspiracy under § 846.” Gibbs, 182 F.3d at 420. b. Counts Six & Seven “[A] violation of 21 U.S.C. § 841(a), distribution of cocaine, requires that a defendant: (1) knowingly or intentionally distribute cocaine, and; (2) at the time of such distribution the defendant knew that the substance was cocaine.” United States v. Colon, 268 F.3d 367, 376 (6th Cir.2001). Counts Six and Seven also charged Graham under 18 U.S.C. § 2 for aiding and abetting another to violate 21 U.S.C. § 841. “[T]he essential elements of aiding and abetting are (1) an act by the defendant that contributes to the commission of the crime, and (2) an intention to aid in the commission of the crime.” Davis, 306 F.3d at 412. “To prove that [Graham] aided and abetted the drug transactions under 18 U.S.C. § 2, the government must establish that [Graham] participated in the venture as something [ ]he wished to bring about and sought to make succeed.” United States v. Ward, 190 F.3d 483, 487 (6th Cir.1999), cert. denied, 528 U.S. 1118, 120 S.Ct. 940," }, { "docid": "23559990", "title": "", "text": "court did not err in denying Gunter’s motion to suppress. II. The Sufficiency of the Evidence A. Standard of Review This Court reviews de novo the sufficiency of the evidence to sustain a conviction. United States v. Gibson, 896 F.2d 206, 209 (6th Cir.1990). Evidence is sufficient to sustain a conviction if “after viewing the evidence in the light most favorable to the prosecution, and after giving the government the benefit of all inferences that could reasonably be drawn from the testimony, any rational trier of fact could find the elements of the crime beyond a reasonable doubt.” United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 589 (6th Cir.1999) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In examining claims of insufficient evidence, this Court does not “weigh the evidence presented, consider the credibility of witnesses, or substitute [its] judgment for that of the jury.” Id. at 588-89. B. Analysis Gunter argues that there was insufficient evidence to support his conviction for cocaine conspiracy. To sustain a conviction for drug conspiracy, the government must prove beyond a reasonable doubt: (1) an agreement to violate drug laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy. United States v. Layne, 192 F.3d 556, 567 (6th Cir.1999). These elements may be shown by either direct or circumstantial evidence. United States v. Avery, 128 F.3d 966, 971 (6th Cir.1997). The government need not prove the existence of a formal or express agreement among the conspirators; a tacit or mutual understanding is sufficient, so long as the agreement is proven beyond a reasonable doubt. Id. at 970-71. Gunter argues that even if the trial testimony is accepted in the light most favorable to the government, the government failed to establish anything more than a buyer-seller relationship between Gunter and Banks. This argument lacks merit. While a buyer-seller relationship alone does not establish a conspiracy, evidence of repeat purchases can. United States v. Brown, 332 F.3d 363, 373 (6th Cir.2003). Further, “[a] large volume of narcotics creates an inference of" }, { "docid": "23227993", "title": "", "text": "buyer’s successful resale of the drugs.”) (citation omitted); see also United States v. Pizano, 421 F.3d 707, 719-20 (8th Cir.2005) (relying on evidence of fronting over five-year period to uphold conviction for conspiracy to distribute). 3. The Buyer-Seller Rule The district court instructed the jury on Mincoff s theory that “[ujnder the controlling buy-sell law, there was no conspiracy to distribute cocaine.” The jury was instructed that: The sale of narcotics, standing alone, does not establish a conspiracy to distribute narcotics; rather, the government must establish beyond a reasonable doubt that the buyer and seller in a narcotics transaction had an agreement to further distribute the narcotics in question. The sale of large quantities of narcotics, without more, is insufficient to establish an agreement between the buyer and seller to further distribute narcotics; however, the sale of large quantities of narcotics, in combination with other factors that indicate the buyer conspired with the seller to effect a further narcotics transaction, may be sufficient to establish a conspiracy to distribute narcotics. The jury obviously did not adopt Mincoff s theory because it convicted him of one count of conspiracy to distribute cocaine. Viewing the evidence in the light most favorable to the government, a rational trier of fact could have found the buyer-seller rule inapplicable to the facts of this case. In United States v. Lennick, 18 F.3d 814, 819 (9th Cir.1994), the defendant sold marijuana to friends for their personal use. There was no evidence that the Mends “further distributed the marijuana” or that “Lennick sold them marijuana in a sufficient quantity to support an inference that they were going to further distribute it.” Id. (citation omitted). Here, by contrast, Munoz sold Mincoff large quantities of cocaine that could support an inference of further distribution. Also, the recorded calls and Munoz’s testimony revealed that both he and Mincoff were well aware that they were procuring the cocaine for Mincoffs buyers. Mincoffs conspiracy conviction was warranted because the evidence demonstrated an agreement to further distribute the cocaine, rather than the “mere purchase” of large quantities of drugs. The facts of United" }, { "docid": "11883318", "title": "", "text": "reasonably be construed only as supporting a finding of multiple conspiracies.” Id. at 236 (quoting Warner, 690 F.2d at 548) (emphasis in original). 2. Prejudice “[E]ven if a variance exists, it does not constitute reversible error ‘unless it prejudices [the defendant’s] substantial rights.’ ” United States v. Lee, 991 F.2d 343, 349 (6th Cir.1993) (quoting United States v. Guerrar-Marez, 928 F.2d 665, 671 (5th Cir.1991)). “Moreover, ‘if the government proves multiple conspiracies and a defendant’s involvement in at least one of them, then clearly there is no variance affecting that defendant’s substantial rights.’ ” Id. Even assuming a variance, Robinson has failed to demonstrate how he has been prejudiced. This is not a case where there could be a danger of “transferred guilt” from evidence of multiple conspiracies in which Robinson was not involved. In any event, even if the evidence proved only multiple conspiracies, the government has proved Robinson’s involvement in at least one of them. CONCLUSION For the foregoing reasons, we AFFIRM Robinson’s conviction and sentence. . Troy Allison testified that Robinson had introduced him to Valentin. Allison purchased \"a quarter kilo” of cocaine from Valentin upon meeting him and continued to buy from him after that. Allison \"ultimately builft] up to” buying one kilogram of cocaine at a time from Valentin, with his largest single purchase being two kilograms. . In the 14 conversations played for the jury, Valentin and Robinson discuss a minimum total of 38-and-a-half ounces of cocaine. . Robinson has two prior convictions for felony drug offenses. . We have previously adopted this view in unpublished opinions. See United States v. Alaniz, 75 Fed.Appx. 344, 351-52 (6th Cir. 2003); United States v. Grooms, 194 Fed.Appx. 355, 362 (6th Cir.2006). . Robinson does not challenge the sufficiency of the evidence regarding the threshold quantity of cocaine. . If the issue of variance is not raised at trial, however, review is for plain error. Caver, 470 F.3d at 235. The parties have not indicated whether Robinson raised this issue at trial or, if he did, where in the record it appears. We find that, under either" }, { "docid": "23199440", "title": "", "text": "buyer/seller relationship alone is not enough to establish participation in the conspiracy, but further evidence indicating knowledge of and participation in the conspiracy can be enough to link the defendant to the conspiracy. Gibbs, 182 F.3d at 421-22 (internal citation removed). We have previously recognized “that the ‘trust’ involved in ‘fronting’ drugs under a delayed payment or credit arrangement ‘suggests more than a buyer-seller arrangement between the parties.’ ” United States v. Henley, 360 F.3d 509, 514 (6th Cir.2004) (citation omitted). According to Higdon’s testimony, Stewart frequently fronted methamphetamine to Wettstain under a delayed-payment arrangement, including the methamphetamine Wettstain acquired from Stewart on January 11, 2007. Moreover, “[a] jury may infer that a defendant had the intent to distribute drugs from circumstantial evidence of the possession of large quantities of drugs.” United States v. Young, 243 Fed.Appx.105, 106 (6th Cir.2007) (unpublished) (citing United States v. Faymore, 736 F.2d 328, 333 (6th Cir.1984)). As the D.C. Circuit has accurately observed, “[a] person can be found guilty on a theory of conspiracy, aiding and abetting, or constructive possession without ever having touched the drugs at issue.” United States v. Curry, 494 F.3d 1124, 1128 (D.C.Cir.2007). Wettstain and Stewart attack Higdon’s credibility because he was a cooperating witness. However, “[s]ufficiency-ofthe-evidence appeals are no place ... for arguments regarding a government witness’s lack of credibility.” United States v. Hernandez, 227 F.3d 686, 694 (6th Cir.2000) (citations and internal quotation marks omitted). “This Court has repeatedly held that a juror is free to weigh the testimony of a co-conspirator who pleads guilty and testifies pursuant to a cooperation agreement with the United States.” United States v. Fonseca, 193 Fed.Appx. 483, 491 (6th Cir.2006) (unpublished) (citing Hernandez, 227 F.3d at 694). Thus, Higdon’s credibility, or lack thereof, is not a proper issue for our consideration, and his uncorroborated testimony alone can support Wettstain’s and Stewart’s convictions. United States v. King, 288 Fed.Appx. 253, 256 (6th Cir.2008) (unpublished) (citing United States v. Clark, 18 F.3d 1337, 1343 (6th Cir.1994)). For these reasons, we hold that there was sufficient evidence from which a rational trier of fact could" }, { "docid": "22257627", "title": "", "text": "not equivalent to the agreement needed to support a conviction for conspiracy. Gibbs, 182 F.3d at 421. Instead, a conviction must be based on evidence from which a rational trier of fact could find that the defendant had knowledge of the conspiracy itself, and purposefully joined the conspiracy. See United States v. Grunsfeld, 558 F.2d 1231, 1235 (6th Cir.1977). This can be inferred through circumstantial evidence, Henley, 360 F.3d at 513, including evidence of repeated purchases, or evidence of a large quantity of drugs. United States v. Martinez, 430 F.3d 317, 333 (6th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1603, 164 L.Ed.2d 324 (2006) (citing United State v. Brown, 332 F.3d 363, 373 (6th Cir.2003)). Defendants first argue that the evidence showed that independent individuals operated in the same area, buying and selling crack cocaine as self-interested competitors, not as members of a chain conspiracy. This contention is without merit. The government produced ample evidence of a conspiracy. This evidence included testimony that conspirators pooled money to purchase drugs, as Defendant Cloud did with Hall, and testimony that conspirators cooperated to attempt to evade law enforcement, such as Defendant Caver taking photographs with Ralph Jones, or Defendant Cloud discussing ways to elude the law with Wilson, Bell, Wylie, and Hall. The government also presented evidence that conspirators worked together, such as when Defendant Abdullah intended to work with Hall to sell crack cocaine to Morris, before Hall backed out because he recognized the undercover police car. Moreover, the record demonstrates that all Defendants repeatedly engaged in regular, high-volume drug sales. This evidence was sufficient for a reasonable jury to find the existence of a conspiracy. See Martinez, 430 F.3d at 332-33. Defendants next argue, citing Henley, that no conspiracy exists here because the alleged coconspirators did not depend on each other for success. See Henley, 360 F.3d at 513 (“One can assume that the participants understand that they are participating in a joint enterprise because success is dependent on the success of those from whom they buy and to whom they sell.” (quoting Spearman, 186 F.3d at 746))." }, { "docid": "20894351", "title": "", "text": "344 (6th Cir.2005). In evaluating such a challenge, we are tasked with determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When engaging in this analysis, we “neither independently weigh[ ] the evidence, nor judge[] the credibility of witnesses who testified at trial.” United States v. Howard, 621 F.3d 433, 460 (6th Cir.2010). Any “issues of credibility” must be resolved in favor of the jury’s verdict. United States v. Salgado, 250 F.3d 438, 446 (6th Cir.2001). A. Sufficiency of Evidence Related to Wilburn’s Participation in the Conspiracy The government presented sufficient evidence to allow a rational trier of fact to conclude that Wilburn entered into a conspiracy to manufacture and distribute methamphetamine. The elements that the government needed to prove in order to convict Wilburn under 21 U.S.C. § 846 are: “(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” Pritchett, 749 F.3d at 431 (internal quotation marks omitted). “[T]he government need not prove the existence of a formal or express agreement among the conspirators. Even a tacit or mutual understanding among the conspirators is sufficient.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir.2007) (citations omitted). A defendant’s knowledge and intent to join the conspiracy “can be inferred through circumstantial evidence ... including evidence of repeated purchases, or evidence of a large quantity of drugs.” United States v. Caver, 470 F.3d 220, 233 (6th Cir.2006). Wilburn argues that the government failed to prove that an ongoing agreement existed, or that Wilburn had knowledge of such an agreement and purposefully joined it. To the contrary, the government presented significant witness testimony suggesting that Wilburn had an agreement with Brosky and Collins to manufacture methamphetamine. For example, Hollie Adkins testified that Wilburn joined Collins and Brosky in a “three-way split on a cook” of methamphetamine. (R. 699, Transcript of Day 2" }, { "docid": "22090955", "title": "", "text": "a sample, and watched Abies comply with Defendant’s commands. Moreover, on the day of the arrest, agents found Abies with Defendant, and found two kilograms of cocaine by Abies and one by Defendant. Viewing this evidence in the light most favorable to the government, a rational trier of fact could conclude from the circumstances surrounding Abies’ involvement that Abies and Defendant were co-conspirators. See United States v. Christian, 786 F.2d 203, 211 (6th Cir.1986). Therefore, we find that the government produced sufficient evidence of Defendant’s involvement in a drug conspiracy to support his conviction on Count 1. b. Count 4: Conspiracy with Fuller Count 4, which relates to conduct concluded on July 1, 1994, refers to the existence of a conspiracy between Defendant and informant Fuller to possess with intent to distribute powder cocaine. Defendant alleges that no more than a buyer-seller relationship existed between him and Fuller. We have recognized that “a buyer-seller relationship is not alone sufficient to tie a buyer to a conspiracy.” United States v. Grunsfeld, 558 F.2d 1231, 1235 (6th Cir.1977). However, additional evidence beyond the mere purchase or sale of drugs, such as evidence of repeat purchases or some enduring arrangement that implies knowledge of the scope of the conspiracy may support a conspiracy conviction. See United States v. Anderson, 89 F.3d 1306, 1310 (6th Cir.1996) (citing United States v. Baker, 905 F.2d 1100, 1106 (7th Cir.1990)). The evidence at trial showed that Defendant regularly distributed cocaine to Fuller and that when Agent Copeland approached Fuller about a kilogram of cocaine, Fuller indicated that Defendant would want to buy the kilogram. Fuller visited Defendant and obtained from Defendant a set of triple beam scales for use in the drug transaction. The evidence also showed that Defendant demanded the return of his scales and complained to Fuller that he was losing business without them. The evidence, taken in the light most favorable to the government, reveals that Defendant was “not simply a street buyer engaging in a discrete transaction, but that he knew he was involved in an ongoing conspiracy of some dimension.” United States" }, { "docid": "11993431", "title": "", "text": "difference in the outcome. The court sentenced Johnson and Bender to the statutory mandatory term of life in prison. II. Analysis A. Sufficiency of the Evidence Bender argues that the evidence at trial established only his involvement in a buyer-seller relationship, not a conspiracy to distribute drugs. This argument is often made but rarely successful. Our review is highly deferential; we view the evidence in the light most favorable to the government, and the jury’s verdict must be upheld if “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Albarran, 233 F.3d 972, 975 (7th Cir.2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). A defendant’s involvement in the distribution of large quantities of drugs — while itself not sufficient to establish a drug conspiracy — suffices to prove a conspiracy when combined with other evidence, such as: (1) standardized transactions, (2) sales on credit, (3) a continuing relationship, and (4) an understanding that the drugs would be resold. United States v. Adkins, 274 F.3d 444, 450 (7th Cir.2001). Here, the evidence was sufficient for the jury to conclude that Bender was involved in the charged drug-distribution conspiracy. Among other things, the gov ernment’s case included Turner’s testimony about the large quantities of drugs Bender sold; the evidence that Bender sold the drugs to Turner on credit; and the frequency of Bender’s large-quantity sales. We have held that selling drugs on credit is especially indicative of a conspiracy because it gives the seller a stake in the buyer’s successful resale of the drugs. United States v. Ferguson, 35 F.3d 327, 331 (7th Cir.1994) (“the repeated ‘fronting’ of cocaine, alone, has been held sufficient to support the jury’s conclusion that the defendant had knowingly joined a distribution conspiracy”). Moreover, coconspirator Cabell testified that he acted as a “runner” for the Evansville drug conspiracy, delivering cocaine from Bender to Turner but having Turner pay Bender directly. This demonstrates both standardized transactions between Bender and Turner and the use of a regular" }, { "docid": "7221661", "title": "", "text": "Courtney specifically intended to participate in the conspiracy. b. Defendant Brown The evidence overwhelmingly establishes Brown’s role as a source of drugs and money for the conspiracy. Both Donnell Simpson and Ronald Simpson testified that they bought powder cocaine from Brown, and later processed that powder cocaine into cocaine base for distribution. Donnell Simpson testified that Shawn McKinney was with Brown on at least one of those occasions. Ronald Simpson also testified that Brown was a source of Shawn McKinney’s cocaine, which Brown gave to McKinney on consignment so that McKinney and others could re-sell it. Brown raises two arguments relating to his specific intent to join: (1) that Brown’s relationship to the other conspirators was nothing more than a buyer-seller relationship; and (2) that there was insufficient evidence to support the jury’s finding that Brown was involved in a conspiracy to distribute crack, rather than merely powder cocaine. A mere buyer-seller relationship alone is insufficient to establish a conspiracy. United States v. Anderson, 89 F.3d 1306, 1310 (6th Cir.1996). However, evidence of repeat purchases provides evidence of more than a mere buyer-seller relationship. Id. (quoting United States v. Baker, 905 F.2d 1100, 1106 (7th Cir.1990)). Moreover, “[a] large volume of narcotics creates an inference of conspiracy.” United States v. Bourjaily, 781 F.2d 539, 545 (6th Cir.1986). The evidence at trial established that the conspirators had a regular arrangement with Brown to purchase very large quantities of powder cocaine. This goes beyond a mere buyer-seller relationship and provides sufficient evidence to support the jury’s verdict. Brown is right to point out that no witness specifically testified that he knew the conspirators cooked some of the cocaine into crack. However, the government did not need to prove that Brown actively participated in the cooking of powder cocaine into crack, and “guilty knowledge and voluntary participation may be inferred from surrounding circumstances.” Christian, 786 F.2d at 211. Given the close relationships among the conspirators and the repeated transactions, there was sufficient circumstantial evidence for a rational jury to infer that Brown knew the general gist of the conspiracy when he chose to" }, { "docid": "20894352", "title": "", "text": "(2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” Pritchett, 749 F.3d at 431 (internal quotation marks omitted). “[T]he government need not prove the existence of a formal or express agreement among the conspirators. Even a tacit or mutual understanding among the conspirators is sufficient.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir.2007) (citations omitted). A defendant’s knowledge and intent to join the conspiracy “can be inferred through circumstantial evidence ... including evidence of repeated purchases, or evidence of a large quantity of drugs.” United States v. Caver, 470 F.3d 220, 233 (6th Cir.2006). Wilburn argues that the government failed to prove that an ongoing agreement existed, or that Wilburn had knowledge of such an agreement and purposefully joined it. To the contrary, the government presented significant witness testimony suggesting that Wilburn had an agreement with Brosky and Collins to manufacture methamphetamine. For example, Hollie Adkins testified that Wilburn joined Collins and Brosky in a “three-way split on a cook” of methamphetamine. (R. 699, Transcript of Day 2 of Jury Trial, Page ID #7577.) She testified that she had seen Wilburn, Collins and Brosky cook methamphetamine together: “I was there. I [saw] them get the stuff together. I[saw] them bring it back and finish smoking it off. I [saw] them weigh it out, sell it.” (Id. at 7563.) Additionally, Charles Skaggs testified that Wilburn and Collins would give him methamphetamine in exchange for lithium batteries, which are used to manufacture methamphetamine. Likewise, Mickey Brown testified that he helped Wilburn and Collins cook methamphetamine on the mountain close to Wilburn and Collins’ trailers 20 to 30 times. Such testimony was sufficient to allow a rational trier of fact to conclude that all three elements of conspiracy had been met. Resolving all credibility issues in favor of the jury’s verdict, the government presented sufficient evidence to allow a ration al trier of fact to conclude that Wilburn entered into a conspiracy to manufacture and distribute methamphetamine. B. Sufficiency of Evidence Supporting Drug Amounts Collins and Wilburn argue that the evidence presented at trial was insufficient" }, { "docid": "23559991", "title": "", "text": "a conviction for drug conspiracy, the government must prove beyond a reasonable doubt: (1) an agreement to violate drug laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy. United States v. Layne, 192 F.3d 556, 567 (6th Cir.1999). These elements may be shown by either direct or circumstantial evidence. United States v. Avery, 128 F.3d 966, 971 (6th Cir.1997). The government need not prove the existence of a formal or express agreement among the conspirators; a tacit or mutual understanding is sufficient, so long as the agreement is proven beyond a reasonable doubt. Id. at 970-71. Gunter argues that even if the trial testimony is accepted in the light most favorable to the government, the government failed to establish anything more than a buyer-seller relationship between Gunter and Banks. This argument lacks merit. While a buyer-seller relationship alone does not establish a conspiracy, evidence of repeat purchases can. United States v. Brown, 332 F.3d 363, 373 (6th Cir.2003). Further, “[a] large volume of narcotics creates an inference of conspiracy.” United States v. Bourjaily, 781 F.2d 539, 545 (6th Cir.1986) (finding that one kilogram of cocaine was a large volume), aff'd, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The evidence at trial established that Gunter had purchased cocaine in the range of one to four kilograms in the past, that he had provided funds for the purchase of another two kilograms, and that he indicated an intent to make repeat transactions in the future. These facts demonstrate both repeated transactions, like in Brown, and a large volume of cocaine, like in Bourjaily. Gunter’s actions establish more than a buyer-seller relationship, and we conclude that they provide sufficient evidence to support the jury’s verdict. III. Impeachment with Evidence of Prior Convictions A. Standard of Review This Court reviews a district court’s denial of a motion in limine for abuse of discretion. United States v. Talley, 194 F.3d 758, 765 (6th Cir.1999). A district court abuses its discretion when it relies on clearly erroneous findings of fact, when it improperly applies the law," }, { "docid": "22090956", "title": "", "text": "Cir.1977). However, additional evidence beyond the mere purchase or sale of drugs, such as evidence of repeat purchases or some enduring arrangement that implies knowledge of the scope of the conspiracy may support a conspiracy conviction. See United States v. Anderson, 89 F.3d 1306, 1310 (6th Cir.1996) (citing United States v. Baker, 905 F.2d 1100, 1106 (7th Cir.1990)). The evidence at trial showed that Defendant regularly distributed cocaine to Fuller and that when Agent Copeland approached Fuller about a kilogram of cocaine, Fuller indicated that Defendant would want to buy the kilogram. Fuller visited Defendant and obtained from Defendant a set of triple beam scales for use in the drug transaction. The evidence also showed that Defendant demanded the return of his scales and complained to Fuller that he was losing business without them. The evidence, taken in the light most favorable to the government, reveals that Defendant was “not simply a street buyer engaging in a discrete transaction, but that he knew he was involved in an ongoing conspiracy of some dimension.” United States v. Phibbs, 999 F.2d 1053, 1064 (6th Cir.1993). Therefore, we find that sufficient evidence of a conspiracy, beyond a mere buyer-seller relationship, existed to support a conviction on Count 4 against Defendant. c. Count 6: Conspiracy to Distribute Crack Although the government produced sufficient evidence of drug conspiracies in Counts 1 and 4, we agree with Defendant that the same cannot be said for Count 6, which targeted conduct from March 1996 through May 21, 1996 and charged Defendant with a conspiracy “to manufacture, distribute, and possess with intent to distribute crack cocaine” in violation of § 841(a)(1) and § 846. (J.A. at 35.) To prove a conspiracy under § 846, the government must show an agreement by two or more persons to violate federal drug laws and knowledge of, intention to join, and participation in the conspiracy on the part of each conspirator. See United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir.1998). Here, the government failed to show that two or more persons agreed to manufacture, distribute, and possess crack with intent" } ]

[ { "docid": "23036116", "title": "", "text": "be liable to detention and search * * * ” 46 Stat. 748 (1930) 19 U.S. C.A. § 1582. We agree with appellants’ second legal point, that an arrest cannot be justified by what a later search discloses. But appellants were stopped as part of a lawful border search; arrested as result of, and only after, evidence which they had attempted to discard had been found without a search; and which evidence created probable cause for their arrest. They were convicted because of the foregoing, and because of evidence found in a subsequent lawful search. We do not find Johnson v. United States, supra, relied upon by appellants, applicable to the facts herein. Nor is the border search and subsequent arrest governed by California law. To the' contrary, the federal law applies, as hereinabove quoted and decided. This was a search of a person entering the United States from a foreign country. We therefore need not reach the question of “probable cause” under California law. As to Carpio’s conviction, we agree, as did the trial court, that a close question is presented by evidence, particularly with respect to count two (importation). But the trial court did find him guilty, and certainly there is sufficient evidence of his participation in a conspiracy under the one count. He drove the car; the four individuals all knew of Murgia’s intent and purpose in going to Mexico; Carpió waited until Murgia returned ; there was evidence that the narcotics kit had been carried openly on the floorboard in the front of the car. That was where Carpió sat. It could readily be inferred by the trier of fact that Carpió knew of the narcotics and the contents of the kit. This evidence, and not merely his previous record, convicted him on the conspiracy count. The sentence he received on each count was the same, and concurrent. Thus, if defendant Carpió was validly convicted under the conspiracy count (one), a reversal cannot be had regardless of the validity of the conviction on the importation count (two). Fuentes v. United States, 9 Cir., 1960, 283 F.2d" } ]

[ { "docid": "5358952", "title": "", "text": "1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An “officer may question [individuals reasonably detained near the border] about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.” Brignoni-Ponce, 422 U.S. at 881-82, 95 S.Ct. 2574. Wardlow asked Cervantes about his place of birth, his citizenship, whether he had permission to be in the United States and how he had crossed into the United States. These questions were reasonably limited in scope to determining whether Cervantes had crossed the border illegally. Cervantes sought to suppress only his statements made in response to Wardlow’s questions, and he conceded no one asked him additional questions until after Agent Markle read him his Miranda rights. By handcuffing Cervantes, Agent Wardlow did not convert the Terry stop into a custodial arrest. “Handcuffing a suspect does not necessarily dictate a finding of custody.” United States v. Booth, 669 F.2d 1231, 1236 (9th Cir.1981). Where a suspect threatens physical danger or flight, officers may use handcuffs in the course of a Terry stop. See Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir.1996) (“[W]e have only allowed the use of especially intrusive means of effecting a stop in special circumstances, such as ... where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight....”); United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir.1982). Cervantes led Agent Wardlow on a chase away from his car into the desert. Doing so both increased the risk to Wardlow and demonstrated an intention to evade arrest. Under these circumstances, Wardlow’s use of handcuffs was justified. In sum, Wardlow had reasonable suspicion to make an initial Terry stop. He limited the scope of his questions to investigating that suspicion alone. His use of handcuffs was justified by Cervantes’ flight and Wardlow’s safety concern and thus did not convert the stop into a custodial arrest. Accordingly, we hold that the district court did not err in admitting the statements Cervantes made in" }, { "docid": "465441", "title": "", "text": "in a paper sack on the front seat. Holding that there was no logical connection between determin ing Contreras’ citizenship and investigating the contents of the sack, this Court reversed the judgment of the trial court. With groat significance to the case at bar, the Contreras Court also stated that the “officer was unquestionably justified in stopping the car, not, however, to search for narcotics; but to establish appellants’ nationality”. Similarly, in Fernandez, supra, we held that the statute granting Border Patrol officers authority to make reasonable searches for aliens “within a reasonable distance from an external boundary of the United States” was clearly constitutional, as “* * * Congressional recognition of the right of the United States to protect its own boundaries against the illegal entry of aliens * * *” Contrary to Fumagalli’s claim, Contreras and Fernandez explicitly approve the stopping and inspection of vehicles for concealed aliens without any requirement of “probable cause”. Nevertheless, appellant lists a number of cases in which, according to him, this Court has required the presence of probable cause as a prerequisite to a search for aliens. Appellant has badly misstated the law in this matter. In Cervantes v. United States, 263 F. 2d 800 (C.A.9 1959) a defendant was stopped on a public highway after the Border Patrol received an “alert” from an agent in Tijuana that Cervantes might be carrying narcotics. His conviction was reversed on the grounds that, in the absence of close surveillance, there was no probable cause to believe that Cervantes was smuggling narcotics. In Renteria-Medina v. United States, 346 F.2d 853 (C.A.9 1965) after Border Patrol officers stopped a car on a routine immigration check, one of the passengers told an inspector that he was an addict and that the small package held in his hand contained heroin. Under those circumstances we held that there was ample probable cause for believing that a narcotics offense was taking place. What all of these cases make clear is that probable cause is not required for an immigration search within approved limits but is generally required to sustain the" }, { "docid": "23113372", "title": "", "text": "who was the owner of the automobile; he was the person who had “possession” of the heroin and marijuana. Cervantes’ conviction was reversed because of the Government’s failure to meet the burden of establishing “probable cause” for the arrest and for the search without an arrest or search warrant. On retrial Cervantes was again convicted and his conviction reversed in the second Cervantes case for the same reason as his conviction was reversed in the first case. In Contreras, Contreras and his co-defendants were driving north on a highway about 72 miles north of the Mexican border and were stopped by a patrol inspector employed by the Immigration and Naturalization Service. The inspector asked the man on the right side of the front seat of the car to step out. When this passenger complied with the request, the inspector noted a paper sack covered by a leather jacket and a bedspread. He removed the paper sack from the car and found that it contained marijuana. On a motion to suppress, the district court ruled that Contreras was without standing since it had not been shown that any of the defendant’s property had been seized. On appeal from conviction this court held that appellants did have stand ing, and since the search had been made without a search warrant and without probable cause, the conviction was reversed. Clearly, the appellants had standing. They were lawfully in the automobile at the time it was stopped, and the search made. The search was directed toward them. They had “possession” of the marijuana. While not relied upon by the appellants, we find it necessary to discus i the decision of this court in Plazola v. United States, 291 F.2d 56 (9th Cir. 1961). The only reference to that case in appellants’ brief appears in a quotation from the Contreras case wherein the court in Contreras stated: “See the opinion of this court in a somewhat similar case, Luis Sanchez Plazola v. United States, 1961, 291 F.2d 56.” The Plazola case is closely similar on its facts to the instant case. The facts of the" }, { "docid": "465440", "title": "", "text": "1357(a) is not unconstitutional; and (3) both the detection of marihuana odor and the sighting of a package of the substance constituted probable cause for Inspector Camp to search for and seize the contra-brand, to arrest Fumagalli and his companions, and to search their persons and the rest of the auto. On appeal, Fumagalli contends that a Border Patrol officer may not search the trunk of an auto within the United States in an effort to locate an illegally entered alien when he has no probable cause to believe that the vehicle is carrying such a person. First, appellant states that this Court set down rules about searches in Fernandez v. United States, 321 F.2d 283 (C.A.9 1963) and in Contreras v. United States, 291 F.2d 63 (C.A.9 1961) which, supposedly, prohibit the kind of search conducted in the present case. In the Contreras case a person was stopped by a Border Patrol inspector during a routine cheek for “illegal aliens”. After finding no aliens in the trunk of Contreras’ car, the inspector noticed marihuana in a paper sack on the front seat. Holding that there was no logical connection between determin ing Contreras’ citizenship and investigating the contents of the sack, this Court reversed the judgment of the trial court. With groat significance to the case at bar, the Contreras Court also stated that the “officer was unquestionably justified in stopping the car, not, however, to search for narcotics; but to establish appellants’ nationality”. Similarly, in Fernandez, supra, we held that the statute granting Border Patrol officers authority to make reasonable searches for aliens “within a reasonable distance from an external boundary of the United States” was clearly constitutional, as “* * * Congressional recognition of the right of the United States to protect its own boundaries against the illegal entry of aliens * * *” Contrary to Fumagalli’s claim, Contreras and Fernandez explicitly approve the stopping and inspection of vehicles for concealed aliens without any requirement of “probable cause”. Nevertheless, appellant lists a number of cases in which, according to him, this Court has required the presence of" }, { "docid": "1716109", "title": "", "text": "search, upon mere suspicion of illegal activity within their jurisdiction, persons and vehicles that cross the international border into the United States. As this Court noted in Alexander v. United States, 362 F.2d 379, at 382 (9th Cir. 1966): “Accordingly, it is well settled that a search by Customs officials of a vehicle, at the time and place of entering the jurisdiction of the United States, need not be based on probable cause; that ‘unsupported’ or ‘mere’ suspicion alone is sufficient to justify such a search for purposes of Customs law enforcement.” Seeking to distinguish the case at bar from the general rule, the appellant points to the fact that the car in which he was arrested was not stopped at the time it crossed the border, but rather some fifteen hours and twenty miles later. Again we quote from Alexander v. United States, supra at 382: “Where, however, a search for contraband by Customs officers is not made at or in the immediate vicinity of the point of international border crossing, the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of search was aboard the vehicle at the time of entry into the jurisdiction of the United States. Any search by Customs officials which meets this test is properly called a ‘border search’.” Here there can be no doubt that the manner and extent of the surveillance of the car appellant was driving excludes the possibility that the marijuana found hidden in the rear door was placed there at any time following entry into the United States. From the time the car in question crossed the international border at San Ysidro until it was stopped a few miles north of San Diego, it was under constant surveillance by a team of officers. Nothing occurred during that period of time" }, { "docid": "2973482", "title": "", "text": "Immigration officers to interrogate aliens as to their right to be in the United States. Au Yi Lau v. I. & N. S., 445 F.2d 217 (D.C. Cir. 1971). The Fourth Amendment requirement of probable cause has been read into the second sub-paragraph of section 1357(a), authorizing arrests by such officers. Ibid. See also Yam Sang Kwai v. I. & N. S., 133 U.S.App.D.C. 369, 411 F.2d 683 (1969). Similarly, subparagraph (a) (3) must be read as authorizing a warrantless search for aliens without probable cause only in accordance with Fourth Amendment limitations applicable to a “border search.” The government does not contend that the search in this case qualified as a “border search.” The officers did not know with “reasonable certainty” that the occupants and contents of appellant’s car were the same as they had been when the border was crossed — indeed, they did not know that the car had crossed the border at all. And since there was no probable cause to stop the car and search it, appellant’s Fourth Amendment rights were violated. United States v. Kandlis, supra, 432 F.2d 132; Valenzuela-Garcia v. United States, 425 F.2d 1170 (9th Cir. 1970) ; Roa-Rodriquez v. United States, 410 F.2d 1206 (10th Cir. 1969; Montoya v. United States, 392 F.2d 731, (5th Cir. 1968); Contreras v. United States, 291 F.2d 63 (9th Cir. 1961); Cervantes v. United States, 263 F.2d 800 (9th Cir. 1959). Ill There is no other basis upon which the search of appellant’s car can be justified. A. We have held that an officer may stop an automobile for investigative interrogation of its occupants if he has “reasonable grounds” for such action. Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966); see also United States v. Oswald, 441 F.2d 44 (9th Cir. 1971). This doctrine is of no assistance to the government, however, for it is clear from Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, that though an officer may detain and question suspects on mere reasonable belief, any search conducted in connection with such a detention must be based upon" }, { "docid": "2973476", "title": "", "text": "Appeals, has expressly refused to impose the probable cause restriction upon searches for illegally entered aliens conducted by Immigration and Naturalization officers pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1(a) (3), whether or not the search in question could qualify as a “border search” under the tests discussed above. Duprez v. United States, 435 F.2d 1276, 1277 (1970); Fumagalli v. United States, 429 F.2d 1011 (1970). In the latter case, the court said (1013): “What all of these cases make clear is that probable cause is not required for an immigration search within approved limits [100 miles from an external boundary as fixed by 8 C.F.R. § 287.1(a) (2)] but is generally required to sustain the legality of a search for contraband in a person’s automobile away from the international borders. Valenzuela-Garcia v. United States, 425 F.2d 1170 (C.A. 9 1970). Appellant has confused the two rules in his attempt to graft the probable cause standards of the narcotics cases (■Cervantes) onto the rules justifying immigration inspections exemplified by Contreras, Fernandez, and other cases cited. Applying these distinct tests in the instant case, the District Court found that the opening of the trunk was proper as part of a routine investigation for ‘illegal aliens’ and that probable cause to search the car was present when Inspector Camp smelled the marihuana odors and saw what appeared to be the corner of a brick of marihuana protruding from the mouth of the duffel bag.” If a reason exists for distinguishing searches for aliens from searches for merchandise, no one — including this court — has yet suggested what it might be. Nothing in the words of the Constitution supports the distinction. And no one suggests that the public interest in excluding inadmissible aliens is greater than that in excluding narcotics and other contraband. The language in Carroll v. United States, supra, 267 U.S. at 154, 45 S.Ct. at 285, upon which the “border search” doctrine is based, indicates that for this purpose a search for aliens is indistinguishable from a search for merchandise: “Travelers may be so stopped in" }, { "docid": "1933426", "title": "", "text": "then went to Tijuana and observed a person answering the description provided by the informant driving a 1952 Chrysler with the indicated license number on First Street in that city. Grant again alerted the border inspectors for the purpose of giving this vehicle and its driver a thorough search upon entry into the United States. The record does not disclose whether the automobile and its driver were searched at the border on that day. Grant thereafter checked the corrected license number and found that it was registered to Luis Cervantes in Los An-geles. Grant then made a check of the records in the sheriff’s office of San Diego County and learned that in 1941 Cervantes had been convicted in federal court for smuggling marijuana. He also had a number of other arrests for narcotics violations. On December 8, 1955, Grant again saw Cervantes driving his car on First Street in Tijuana. Once more Grant alerted border inspectors. He requested that the car and its occupants be searched thoroughly “as I suspected narcotics.” Grant also notified the immigration authorities of his suspicions and requested that their Oceanside office be advised by radio. Again the record does not disclose whether Cervantes was stopped and searched at the border. On the evening of December 8, 1955, Cervantes was stopped at San Clemente, California, while driving north in his Chrysler. He was traveling on U. S. Highway 101, which is one of the two main routes between San Diego and Los Angeles. Cervantes was stopped by Clifford J. Davis, a patrol inspector of the Immigration and Naturalization Service, and also an authorized customs inspector. Davis was working out of the Oceanside office and testified that he acted on the basis of Grant’s “alert” for “possible suspects.” Cervantes was not stopped because of any traffic or other law violation then visible. Davis did not have a warrant for Cervantes’ arrest or search. Davis testified that Cervantes was not “arrested,” but was immediately searched. A substance later identified as heroin and a hypodermic syringe were found on Cervantes’ person. Thereafter Cervantes, his lady passenger, and the" }, { "docid": "1198489", "title": "", "text": "Manning v. Jarnigan, 501 F.2d 408, 411-12 (6th Cir. 1974); United States v. Hearn, supra, at 243. So, the court must determine whether defendants’ detention was a valid investigative stop or an arrest invalid for lack of probable cause. In this connection, Almeida-Sanchez v. United States, supra, and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), are instructive. Although these are sometimes referred to as border search' cases, their holdings and dicta are not so limited. The Supreme Court emphasized that the searches in these cases could not be justified on the plenary power to conduct a border search, but that the agents must observe the same constitutional safeguards as if their authority did not come from the Immigration and Nationality Act. In Almeida-Sanchez, supra, the court dealt with searches conducted by roving patrols far from the border and required the showing of probable cause before a search could be conducted. The stopping was held to be had without “founded suspicion” that the occupants were illegal aliens. In Brignoni-Ponce, supra, the court built on Almeida-Sanchez and upheld limited investigative stops on facts that do not amount to probable cause for arrest: “ . . . because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion . . . The officer may question the driver and passengers . and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.” 422 U.S. at 881-82, 95 S.Ct. at 2580, 45 L.Ed.2d at 616. The thrust of these cases is that agents have the power to stop for temporary investigation and interrogation persons about whom they have a “founded suspicion” of involvement in narcotics traffic. Anything more than temporary detention based" }, { "docid": "465442", "title": "", "text": "probable cause as a prerequisite to a search for aliens. Appellant has badly misstated the law in this matter. In Cervantes v. United States, 263 F. 2d 800 (C.A.9 1959) a defendant was stopped on a public highway after the Border Patrol received an “alert” from an agent in Tijuana that Cervantes might be carrying narcotics. His conviction was reversed on the grounds that, in the absence of close surveillance, there was no probable cause to believe that Cervantes was smuggling narcotics. In Renteria-Medina v. United States, 346 F.2d 853 (C.A.9 1965) after Border Patrol officers stopped a car on a routine immigration check, one of the passengers told an inspector that he was an addict and that the small package held in his hand contained heroin. Under those circumstances we held that there was ample probable cause for believing that a narcotics offense was taking place. What all of these cases make clear is that probable cause is not required for an immigration search within approved limits but is generally required to sustain the legality of a search for contraband in a person’s automobile conducted away from the international borders. Valenzuela-Garcia v. United States, 425 F.2d 1170 (C.A.9 1970). Appellant has confused the two rules in his attempt to graft the probable cause standards of the narcotics cases (Cervantes) onto the rules justifying immigration inspections exemplified by Contreras, Fernandez, and other cases cited. Applying these distinct tests to the instant case, the District Court thus found that the opening of the trunk was proper as part of a routine investigation for “illegal aliens” and that probable cause to search the car was present when Inspector Camp smelled the marihuana odors and saw what appeared to be the corner of a brick of marihuana protruding from the mouth of the duffel bag. Accord, Fernandez v. United States, supra, and Barba-Reyes v. United States, 387 F.2d 91. We find no error in the District Court’s conclusions about the legality of the search in question. Judgment affirmed. . An Information filed against appellant, Martin Cunningham, and James Anderson, superseded an earlier three-count" }, { "docid": "1933435", "title": "", "text": "132, 45 S.Ct. 280, 69 L.Ed. 543, and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, that under the Fourth Amendment a valid search of a vehicle moving on a public highway may be had without a warrant, if probable cause for the search exists. . That the Fourth Amendment does apply to the seizure of narcotics, see United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. . That this is the proper test of the reasonableness of such a search, see Carroll v. United States, supra, 267 U.S. at pages 155-156, 45 S.Ct. at page 285. . An authorized federal border official may, upon unsupported suspicion, stop and search persons and their vehicles entering this country. 19 U.S.C.A. § 482. Carroll v. United States, supra, 267 U.S. at pages 153-154, 45 S.Ct. at page 285. But after entry has been completed a search and seizure can be made only on a showing of probable cause. Landau v. United States, 2 Cir., 82 F.2d 285, 286; United States v. Yee Ngee How, D.C., 105 F.Supp. 517, 523. The record does not reveal the elapsed time between Cervantes’ re-entry into the United States on December 8, 1955, and his arrest at San Clemente. However, we take judicial notice of the fact that San Clemente is more than seventy miles from the nearest port of entry from Mexico. There is no indication in the record that Cervantes had wrongfully eluded federal officials at the border, and he was not stopped at San Clemente in connection with a pursuit. In so far as the record reveals, therefore, his entry had been completed prior to the time he reached San Clemente, and the government does not contend otherwise. . Davis was unquestionably warranted in acting on the basis of the “alert,” since he was then entitled to assume that such alert was issued for probable cause. But if the facts and law do not bear out this assumption, the seizure must be regarded as illegal for purposes of applying the Weeks rule, however justified the" }, { "docid": "5616713", "title": "", "text": "he entered a car and rode a mile and a half, the officers stopped the car and made the search. This search, a mile and a half from the border after constant surveillance, was held to be a “border search”. In Leeks v. United States, 356 F.2d 470 (9th Cir. 1966), the Court found a “border search” where the car was “tailed” by several officers who lost sight of the car only momentarily, and where the car was stopped fifteen miles from the border. (There was a shift in who pursued Leeks, brought about by intercommunication of officers over their radios.) See also Gonzales-Alonso v. United States, 379 F.2d 347 (9th Cir. 1967) (eleven miles from the border). See also Judge Duniway’s concurring opinion in Jones v. United States, 326 F.2d 124, 130 (9th Cir. 1963), holding that a search sixty-seven miles from the border was a “border search”. Rodriguez-Gonzalez v. United States, 378 F.2d 256 (9th Cir. 1967), is probably of even greater support to appellee. The Court held that a search after constant surveillance for fifteen hours, twenty miles from the border, and after a driver change, was a lawful “border search”. The Court found nothing in the manner of the surveillance, the distance travelled, or the time elapsed which would indicate that the contraband was placed in the car after it crossed the border. Appellant argues that a search 105 miles from the border is too far away from the border to be considered a “border search”, and relies upon Contreras v. United States, 291 F.2d 63 (9th Cir. 1961). Contreras holds that a search by immigration officers looking for aliens seventy-two miles from the border, where there has been no suspicious behavior at the border and no surveillance or pursuit, may not be sustained as a “border search”. Contreras is easily distinguishable from the instant case: here the customs officers followed appellant continuously from the time he crossed the border, whereas in Contreras there was no surveillance. Consequently, there was no reasonable certainty that any contraband found in or on the car at the time of" }, { "docid": "6825233", "title": "", "text": "the search and seizure. The government does not strongly urge this aspect of the case. Appellee merely asserts, correctly, but with little force or relevance here, that Jones did not “eliminate the requirement that appellants properly establish” themselves to be “persons aggrieved” under Federal Rules of Criminal Procedure 41(e). Finding appellants did have standing to move for suppression of the evidence, not as the law was when the court below ruled on the motion, but as it was later determined to be by the Supreme Court, we then reach the second question: II. Was the search illegal? The search involved here was made without a warrant; and it was not made in connection with a lawful arrest, since the arrest admittedly was made after the search and seizure took place. Furthermore, we cannot believe that the search can be sustained as a border search. The search was not made at or near the border, but seventy-two miles north of it. There was here no history of suspicious behavior at the border followed by surveillance or pursuit. Cf. Murgia v. United States, 9 Cir., 1960, 285 F.2d 14. Appellee, then, must attempt to justify the search on the ground that it was reasonable under the circumstances. In the final analysis, this means — did the immigration inspector have probable cause to conduct the search? Appellants contend that the Cervantes case (Cervantes v. United States, 9 Cir., 1960, 278 F.2d 350) is controlling here. We do not agree. In Cervantes it was held that the officer did not have adequate information to justify his stopping a car in order to make a search for narcotics. In the instant case the officer was unquestionably justified in stopping the car, not, however, to search for narcotics, but to establish appellants’ nationality. Did anything occur after the car was stopped, or was there anything inherent in the process of establishing appellants’ nationality that gave the officer the right to make a search? Appellee contends that the inspector, in furtherance of his aim of establishing appellants’ nationality, was justified in searching the car. Relying upon Haerr" }, { "docid": "6825234", "title": "", "text": "pursuit. Cf. Murgia v. United States, 9 Cir., 1960, 285 F.2d 14. Appellee, then, must attempt to justify the search on the ground that it was reasonable under the circumstances. In the final analysis, this means — did the immigration inspector have probable cause to conduct the search? Appellants contend that the Cervantes case (Cervantes v. United States, 9 Cir., 1960, 278 F.2d 350) is controlling here. We do not agree. In Cervantes it was held that the officer did not have adequate information to justify his stopping a car in order to make a search for narcotics. In the instant case the officer was unquestionably justified in stopping the car, not, however, to search for narcotics, but to establish appellants’ nationality. Did anything occur after the car was stopped, or was there anything inherent in the process of establishing appellants’ nationality that gave the officer the right to make a search? Appellee contends that the inspector, in furtherance of his aim of establishing appellants’ nationality, was justified in searching the car. Relying upon Haerr v. United States, 5 Cir., 1957, 240 F.2d 533, appellee asserts that the inspector had authority to make any investigation he thought proper to determine whether any of the car’s occupants were aliens. In taking this position, he relies on the language: “Such a procedure might reasonably involve examination of any personal property in their possession as well as all parts of the car including the trunk.” Haerr v. United States, supra at page 535. This broad assertion must, when the facts of the ease are considered, be considered as dictum. The Haerr case did involve an immigration cheek at a station located about fourteen miles from the border. When the officers began their investigation, they noticed appellant in the back seat, apparently attempting to hide two boxes. When asked to pull over to the side, the driver rapidly and suddenly drove the car away. The officers pursued, and noticed that the boxes in question were thrown from the car a few hundred yards from the check station. There was thus no search nor any" }, { "docid": "12852000", "title": "", "text": "to the introduction of the contraband evidence. It is well established that “border searches” do not require a finding of “probable cause”. Bloomer v. United States, 409 F.2d 869, 871 (C.A. 9 1969). In Alexander v. United States, 362 F.2d 379 (C.A.9 1966) this court set down a test for determining whether a search not made in the immediate vicinity of the border was nevertheless a border search. Contrasted with the facts in Bloomer, supra, Valenzuela-Garcia was not under constant surveillance from the time he crossed the international border. Furthermore, he traveled a relatively great distance from the border before being stopped. Under the test of Alexander, we agree with the trial judge that the investigation in our case was not a “border search”. Long ago in Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Supreme Court held: Probable cause exists where the facts and circumstances within (an officer’s) knowledge and of which (he) had reasonable trustworthy informa tion (are) sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed or is being committed. The facts of appellant’s nervousness and the lack of dust on the trunk panels are not sufficient as probable cause in our opinion. The circumstances are too equivocal, too available for reasonable interpretations other than the belief that an offense was being committed. In the absence of probable cause, the behind-the-panel search cannot be justified as having been performed in the act of looking for aliens. Contreras, supra, controls here. In that case an Immigration inspector made a routine check for “illegal aliens” at a checkpoint about 72 miles north of the border. Spotting a paper sack in the detained auto, the inspector peered into the bag and saw a stash of marijuana. In view of the fact that the car was stopped for the purpose of checking the nationality of its occupants, we saw “no logical connection between the examination of the sack and the determination of appellants’ citizenship, or the citizenship of any other occupant of the" }, { "docid": "1933428", "title": "", "text": "automobile were taken to the police station in San Clemente where a further search of the car was made. A number of marijuana seeds were discovered and a “secret” compartment was found in the car. At the jury trial Cervantes moved to suppress this evidence. He also objected to the questions eliciting information concerning the “secret” compartment. The motion was denied and the objection was overruled, the evidence being received as part of the government’s case. Invoking the Fourth Amendment, appellant argues that this evidence was obtained by an unreasonable search and seizure and was therefore, under Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 inadmissible in this federal prosecution. The search and seizure was unreasonable, appellant contends, because the arresting officer did not have probable cause to believe that Cervantes was carrying contraband or committing a felony. The government does not deny that the Fourth Amendment applies to the seizure of narcotics. It appears to accept appellant’s proposition that the reasonableness of a search made of an automobile on the highway and its driver depends upon a showing of probable cause. Nor does the government contend that a showing of probable cause is excused in this case because the search was made in connection with a border entry. The government does, however, dispute appellant’s contention that probable cause was not shown in this case. One need not have evidence which would justify a conviction in order to have probable cause to believe that an offense has been or is being committed. On the other hand, probable cause means more than a bare suspicion. In Hamer v. United States, 9 Cir., 259 F.2d 274, 282, we quoted with approval this statement from the opinion in Brinegar v. United States, supra: “Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. [Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280.]”" }, { "docid": "23113371", "title": "", "text": "“no right of privacy of person or premises” of theirs was invaded “which would entitle (them) * * * to object” to the use of the marijuana and the piece of paper as evidence in their trial. Appellants, in support of their position that the marijuana and the piece of paper should have been suppressed, rely upon three cases from this Circuit: Cervantes v. United States, 263 F.2d 800 (9th Cir. 1959); Cervantes v. United States, 278 F.2d 350 (9th Cir. 1960); Contreras v. United States, 291 F.2d 63 (9th Cir. 1961). These cases are inapposite. In the first Cervantes case, Cervantes was stopped at San Clemente, California, while driving north in his Chrysler. He was stopped by a federal inspector of the Immigration and Naturalization Service. Cervantes was searched and heroin was found on his person. Later his car was searched and a number of marijuana seeds were discovered in a secret compartment of his car. Clearly, Cervantes had standing. He was the person against whom the search was directed; he was the person who was the owner of the automobile; he was the person who had “possession” of the heroin and marijuana. Cervantes’ conviction was reversed because of the Government’s failure to meet the burden of establishing “probable cause” for the arrest and for the search without an arrest or search warrant. On retrial Cervantes was again convicted and his conviction reversed in the second Cervantes case for the same reason as his conviction was reversed in the first case. In Contreras, Contreras and his co-defendants were driving north on a highway about 72 miles north of the Mexican border and were stopped by a patrol inspector employed by the Immigration and Naturalization Service. The inspector asked the man on the right side of the front seat of the car to step out. When this passenger complied with the request, the inspector noted a paper sack covered by a leather jacket and a bedspread. He removed the paper sack from the car and found that it contained marijuana. On a motion to suppress, the district court ruled that" }, { "docid": "15493655", "title": "", "text": "law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law — ” shall be punished as provided by law- . “THE COURT: Mr. Maxcy, what was the reason that you did not stop the defendant at the border? “THE WITNESS: The reason, your Honor, was that we didn’t follow normal procedure and post a look-out in this instance because the information I had in my possession was that Mr. King possibly was going to contact someone else in the Chula Vista or the South Bay area immediately adjacent to the border. For this reason we maintained our own surveillance separate from the inspector for the primary purpose of following him. “THE COURT: In other words, you didn’t stop him at the border because you wanted to try to make some further arrests in the event he contacted other persons. “THE WITNESS: That is correct; yes, sir.” . Appellant’s reliance upon Cervantes v. United States, 263 F.2d 800 (9th Cir. 1959), is misplaced. In Cervantes it was pointed out that the appellant was not stopped in connection with a pursuit, but was stopped on the basis of information that some ten weeks before the appellant, Thayer, was supposed to have gone to Tijuana to purchase narcotics, that the government official had no information that the appellant that day was transporting any contraband material, and that the appellant was stopped some seventy miles north of the border on the basis of an alert for “possible suspects.” . 19 U.S.C. § 482 provides: “Any of the officers * * * authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle * * * on which * * * he or they shall suspect there is merchandise which * * * shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in" }, { "docid": "6825232", "title": "", "text": "had no standing to raise the search and seizure question. Where a criminal charge against a defendant is based upon possession, the Jones case establishes that the defendant, is, by that very fact, a “person aggrieved by an unlawful search and seizure,” (Fed.R.Crim. P. 41(e), 18 U.S.C.A.) and may, therefore, raise the constitutional question. The Supreme Court in the Jones case stated further that the government should not be allowed to deprive a “defendant of standing to bring a motion to suppress by framing the indictment in general terms, while prosecuting for possession.” Jones v. United States, supra, 362 U.S. at pages 264-265, 80 S.Ct. at page 733. In the case at bar, appellants were prosecuted for violating 21 U.S.C.A. § 176a. The section contains a provision permitting a conviction based upon the defendant’s unexplained possession of the contraband substance. The jury was so instructed, and, accordingly, could have convicted defendants upon such ground. The government’s case, then, rested at least in part upon “possession,” and consequently defendants had standing to question the legality of the search and seizure. The government does not strongly urge this aspect of the case. Appellee merely asserts, correctly, but with little force or relevance here, that Jones did not “eliminate the requirement that appellants properly establish” themselves to be “persons aggrieved” under Federal Rules of Criminal Procedure 41(e). Finding appellants did have standing to move for suppression of the evidence, not as the law was when the court below ruled on the motion, but as it was later determined to be by the Supreme Court, we then reach the second question: II. Was the search illegal? The search involved here was made without a warrant; and it was not made in connection with a lawful arrest, since the arrest admittedly was made after the search and seizure took place. Furthermore, we cannot believe that the search can be sustained as a border search. The search was not made at or near the border, but seventy-two miles north of it. There was here no history of suspicious behavior at the border followed by surveillance or" }, { "docid": "1933427", "title": "", "text": "the immigration authorities of his suspicions and requested that their Oceanside office be advised by radio. Again the record does not disclose whether Cervantes was stopped and searched at the border. On the evening of December 8, 1955, Cervantes was stopped at San Clemente, California, while driving north in his Chrysler. He was traveling on U. S. Highway 101, which is one of the two main routes between San Diego and Los Angeles. Cervantes was stopped by Clifford J. Davis, a patrol inspector of the Immigration and Naturalization Service, and also an authorized customs inspector. Davis was working out of the Oceanside office and testified that he acted on the basis of Grant’s “alert” for “possible suspects.” Cervantes was not stopped because of any traffic or other law violation then visible. Davis did not have a warrant for Cervantes’ arrest or search. Davis testified that Cervantes was not “arrested,” but was immediately searched. A substance later identified as heroin and a hypodermic syringe were found on Cervantes’ person. Thereafter Cervantes, his lady passenger, and the automobile were taken to the police station in San Clemente where a further search of the car was made. A number of marijuana seeds were discovered and a “secret” compartment was found in the car. At the jury trial Cervantes moved to suppress this evidence. He also objected to the questions eliciting information concerning the “secret” compartment. The motion was denied and the objection was overruled, the evidence being received as part of the government’s case. Invoking the Fourth Amendment, appellant argues that this evidence was obtained by an unreasonable search and seizure and was therefore, under Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 inadmissible in this federal prosecution. The search and seizure was unreasonable, appellant contends, because the arresting officer did not have probable cause to believe that Cervantes was carrying contraband or committing a felony. The government does not deny that the Fourth Amendment applies to the seizure of narcotics. It appears to accept appellant’s proposition that the reasonableness of a search made of an automobile on" } ]